Decided November 22, 2004.
Defendant was indicted for Criminal possession of a weapon in the third degree, P.L. § 265.02(4), and Unlawful possession of pistol or revolver ammunition, N.Y.C. Admin. Code § 10-131(I)(3). The matter came into this part on August 8, 2004 for a combined Mapp and Huntley hearing. Post-hearing memoranda were submitted by counsel on both sides, the last being received on October 5, 2004. After reviewing those submissions, and the transcript of the hearing, the motion to suppress was granted as to both the gun and ammunition, and the statements the Defendant made at the scene of his arrest and later, at the police station.
N.Y.P.D. Sergeant Christopher LaGrasta, a nine year veteran who stated that he had made approximately 500 arrests, testified that he was the anti-crime supervisor in the early hours of August 24, 2003. Working with two partners, Officer Amoresano and Officer Lopez, the three officers were in plain clothes, using an unmarked police vehicle. Working the projects in the area of Randall Avenue, Sgt. LaGrasta directed the officers to walk from the Seward Avenue side, through the middle courtyard of the projects, while he walked south up Randall Avenue "to see if we could finds anybody selling drugs, smoking marijuana, doing anything illegal." H.7. As the sergeant "got to almost to the corner of Rosedale and Randall," he was behind a minivan when he saw the Defendant and two other individuals standing there talking and I stood behind the van and I heard the defendant say to the other two gentlemen he was with, "Oh, shit. Oh, shit. I know that girl, she's a cop. She's a cop."
And then he started to shuffle around, like walking in a circle and said, "I got to get rid of something." And the guy said, "Wait, wait, wait, they may not be coming here."
And then as Officer Amoresano and Lopez got closer, I drew my firearm, walked over to him and said, "Police, don't move." At which time he kept on saying, putting his hands up, "Don't touch my brother. Leave my brother alone. He has nothing to do with this." And I said, "What's wrong?" And he said, "I have a gun on me."
On cross-examination, the sergeant said that the conversation was slightly different: "And I said, `What do you have?' And he said, `I got a gun on me.'" H.28.
At which time I holstered my gun and grabbed him and Mike Officer Amoresano and Tessie Lopez came running over. I handcuffed him and asked him where the gun was. He said, "Back pocket." And I removed the gun out of his back pocket.
H.7-8. He added that, once he finished searching the Defendant's pockets, Officer Lopez frisked him. H.20.
On cross-examination, Sgt. LaGrasta stated that he assigned Officer Lopez to be the "arresting officer" and that she prepared a "Stop and Frisk Report," H.13-15, and he reviewed it. H.12. At first he said that he did not remember putting anything into his own memo book, however. Id. Later, however, he acknowledged that he did have a memo book entry on the incident. H.21.
The sergeant acknowledged that he had no independent basis for focusing on the Defendant, he observed no suspicious bulges on his body, he saw no contraband or any behavior indicative of drug activity. H.17. Instead, Sgt. LaGrasta averred that he observed "furtive movement" by the Defendant: "I noticed when he noticed Officer Lopez, he started walking around like in a little half circle, a little nervous, getting ready to, like he didn't know if he wanted to run, throw something down. He had no idea what he was going to do." H.17. He did not know what the Defendant "had on his person", H.27, and he didn't ask the Defendant and his companions for ID until sometime later. H.24.
When he came from behind the van and approached the Defendant, Officers Lopez and Amoresano were "approximately a hundred feet" away. H.22. He had come out after hearing the Defendant say to the other two that he recognized Officer Lopez as a police officer. When Mr. Lazala went on to repeatedly say, "I want to get rid of it," and his older companion told him to relax, LaGrasta pulled out his service revolver, because he was in a high crime area and he feared for his own safety. Telling the Defendant not to move, he asked, "What's wrong? What's wrong?" because he wanted to know why he was making that statement and circling, and he expected an answer from him. H.27-28.
Q. And when you pulled your gun out and asked him that question, you did so because you wanted to get an admission from him about what he had on his person, correct?
Police Officer Lopez also testified, over the prosecutor's objection, as a defense witness. She confirmed the information in her "Stop and Frisk" report that she saw the Defendant two minutes before making the stop. She testified that Mr. Lazala had been stopped by Sergeant LaGrasta when she was about 80 feet away.
As she and Officer Amoresano approached, she could not hear what they were talking about or even who spoke first, but she acknowledged that she and Officer Amoresano had intended on stopping the Defendant, anyway. H.62-64. "Me and Officer Amoresano was walking towards them. It was pretty late. It was a drug prone location. They were kind of huddled, three people huddled together. We started to walk toward like walking down Randall Avenue. They looked like they were going to take off, like they were shuffling around. They saw us, you can tell, while we were walking." H.64-65. This officer confirmed that she did not see any contraband or criminal activity, although she wanted to stop them because "They looked like they were engaged in a drug transaction at the beginning." H.66.
Lopez wrote down in her stop and frisk report that the reason for the stop was "furtive movements," which she defined as "To make a movement where they are like trying to hide something, moving away from you" and, in this case, the group of three was "kind of moving around." H.67. She also listed the drug prone location as a basis for the stop and frisk, even though she saw nothing specific, and it was her intention to stop the Defendant because she thought he possessed drugs. H.71, 74. "Well, it looked like it to me. . . . They were handing they were talking to each other back and forth, they were huddling, doing, and they moved away from us when they saw us." H.72.
As the officers "were walking up to him, they [the Defendant and Sgt. LaGrasta] were in some kind of I wouldn't say conversation, but something was going in. So we started to pick up our pace to try to get there quicker. And that's when he grabbed him and we knew something was going on. So we tried to get there. We didn't know exactly." H.68.
Officer Lopez testified that Sgt. LaGrasta frisked Mr. Lazala "After he told the sergeant where the gun was." H.69. She then frisked the other two people because "They were close to him. We didn't know what was going on at that point. We were placing him under arrest, and then to have a conversation with the next two gentlemen." H.70.
At the precinct, Detective Manuel Alamo was assigned to interview the Defendant and take a statement. He had previously been told what had happened by Officer Lopez, which he set forth in writing:
At the time and place of occurrence, the defendant was stopped and asked if he lived in the area. The defendant stated yes, but I don't want my brother involved. When asked what he meant by his comment, the defendant stated he had a gun. A .380 automatic was recovered from the defendant['s] back, period. Defendant was arrested without incident.
H.50. Officer Lopez also made a written statement:
And she stated and again, the defendant was observed with three others in a known drug location. The defendant was asked if he lived in the area and the defendant stated yes. I don't want my brother involved. When we asked what he meant by his comment, the defendant stated he had a gun in his back pocket. A .380 automatic was recovered from the defendant's back pants pocket. Defendant was placed under arrest without incident.
Detective Alamo, accompanied by Officer Lopez, interviewed the Defendant and took his statement. H.35-36. After giving the standard Miranda warnings and obtaining the Defendant's signature in acknowledgment, Alamo asked Mr. Lazala to tell him what had happened. The detective recorded the Defendant's statement on a "Firearms Enhancement and Debriefing" form, in which Mr. Lazala stated, "[a]n acquaintance, friend in parenthesis, asked him to hold a gun for him while he went to the store. About ten, twenty minutes the police stopped me. I told him I had a gun in my right rear pants pocket. They took the gun out and arrested me." H.45. The Defendant signed the statement and printed his name underneath the signature. H.46.
The last witness was Jonathan Lopez, the fourteen year old son of the Defendant's girlfriend. A student at "a new school for arts and science," he was thirteen when this incident occurred. He stated that about 1 a.m. the morning of August 24, 2003, he was going to the store with the Defendant to get some "cakes" for his mother, H.81, and to pick up a charger for a cell phone. H.82. They stopped "on the other side of Soundview, across the street from where I lived at," and the Defendant got into a conversation with someone the boy did not know. H.77. "I was sitting next to the cars they was at and next thing I know I saw people coming and one of the guys, the officer that's outside now, and he told Ricardo come over here. So Ricardo went over and he told him to go, so the officer said, "Can you (sic) see ID?" So Ricardo did." H.77-78. The boy continued, that when the officer asked for ID, the Defendant "pulled out the ID and done what he was told and next thing, you know, the officer said, the officer grabbed him and searched him. And when he went to his pocket, the back pocket, there was a weapon found, as you all know it was a gun so that and then the officer was told, he was on his mic, `We got one. We got one.' And the other officers there, the other two officers that came, whatever, and the little guy, a little dude, he pulled out a gun and told Ricardo if you move, he gonna, you know what's gonna happen. So Ricardo didn't move.
The youth stated that he was sitting "next to the car, they was near the gate. I didn't understand what they were saying, so I didn't pay any attention. Q. So you didn't hear what they were saying? A. No, I didn't know what was going on." H.84.
"So then the officer that came to me and he asked me to go home. I said, `No, I'm staying with him because I was with him. I go home with him.' And he said, `No.' And I said, `No.' And he got on me and I said, `Get off me. Get off me.' And Ricardo said, `Leave him alone, that's my little brother.' So there about to put the cuffs on me until Ricardo said that and then officer arrested him and I went home." H.78-79.
The youth further stated that he was about ten feet away when the officer asked the Defendant for his ID and the police had already found the gun when Lazala "made the statement about saying leave him alone, he's my little brother." .79. He did not hear Lazala say anything to the officer when first approached, merely saw him produce identification when it was demanded of him. H.79-80.
He then saw the officer search the Defendant and remove the gun:
Q. And before you saw the cop take the gun out of Ricardo's pocket, you heard Ricardo say something to the cop about having a gun?
A.He didn't say nothing.
After this witness, the hearing concluded, to await submission of the written arguments of the parties.
The People acknowledge that they have the burden of proving the legality of police conduct in the first instance, People v. Malinsky, 15 NY2d 86, 92 n. 2 (1965) (per Fuld, J.), and they submit that they have met their burden of showing probable cause for the search and arrest. They further posit that the signed Miranda waiver form establishes that the Defendant's written statement was free of coercion, and knowingly and voluntarily made. Specifically, the prosecutor argues that the Defendant's alleged initial statement to his friends that he recognized the woman coming down the street as a police officer followed by `I have to get rid of something' coupled with the defendant acting nervously walking around in a circle and shuffling around at 1:20 A.M. in a high crime area clearly gives rise to a level three approach. See People v. DeBour, 40 NY2d 210 (1976), See also People v. Rosario, 94 AD2d 329 (2nd Dept. 1983). All of the above gave Sgt. LaGrasta reasonable suspicion that criminal activity was afoot. Sgt. LaGrasta, fearing that the object the defendant wanted to rid himself of was a weapon, approached the defendant cautiously with his weapon drawn. It has been said by the Court of Appeals that `[i]t would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety.' People v. Benjamin, [ supra ] 51 NY2d 267 at 271 (1980). Sgt LaGrasta testified that his weapon was drawn for his safety.
People's Post Hearing, Memorandum of Law, at 2-3.
Hence, because of the People's assertion that the Sgt. was concerned for his safety, they contend that his gunpoint questioning of the Defendant was not custodial interrogation, but merely a reasonably cautious question which was intended to help the officer allay his own fears. "The defendant's admission that he had a gun in his pocket was not coerced or improperly obtained." Id. , at 3.
Similarly, the People argue that the recovery of the gun was proper. However, they maintain that "if this Court finds that the statement was improperly obtained the officers clearly had reasonable suspicion that the defendant had a weapon on him and would have recovered the gun as a result of a legally proper frisk. In either argument, the gun recovered was obtained in a lawful manner." Id.
In contrast, Defendant argues that the officers' "incredible" testimony was insufficient as a matter of law to establish probable cause because it was "tailored . . . with `confusion, contradictions, uncertainty and conflicting versions of what took place.'". . . Herein, it is manifest that the police detained and searched first, to late obtain evidence to legally support that detention and search." Defendant's Post Hearing Memorandum of Law, at 11-12 (quoting People v. Pepitone, 48 AD2d 135, 137 (1st Dept. 1975), affirmed sub nom. People v. Manfre, 39 NY2d 907 (1976) (affirmed for the reasons stated for the majority in the Appellate Division by Justice Capozzoli).
Counsel further argues that the gunpoint questioning of the Defendant by LaGrasta was specifically intended to elicit incriminating information and should, therefore, have been preceded by a proper Miranda advisement, citing People v. Bennett, 70 NY2d 891 (1987), among others.
Finally, Defense Counsel analyzes Terry v. Ohio, 392 U.S. 1 (1968) and People v. DeBour, 40 NY2d 210 (1976) to conclude that the facts here only justified a limited stop for the purpose of further inquiry. Accordingly, because the gunpoint stop and search "exceeded what was either reasonable, or necessary, it is clear that the defendant's Fourth Amendment rights were violated" and all evidence seized, whether physical or testamentary, must be suppressed as the product of a warrantless seizure conducted without probable cause. Defendant's Post Hearing Memorandum of Law, at 15-20. See also Dunaway v. New York, 422 U.S. 200 (1979).
The People are correct in pointing to People v. DeBour, 40 NY2d 210 (1976) for the applicable analytical framework. That framework has often been reiterated by the Court, as in People v. Hollman, 79 NY2d 181 (1992):
In People v. De Bour, 40 NY2d 210, 223, we set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion" People v. De Bour, supra , at 223. 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. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.
Id. At 184-185. In language that seems particularly apt here, the Hollman Court continued,
In De Bour, we framed the issue as "whether or not a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information" People v. De Bour, supra , at 213. In that case, two police officers walking their beat at 12:15 A.M. observed the defendant walking on the same side of the street in their direction. When the defendant came within 30 or 40 feet of the officers, he crossed the street. The officers followed him and asked him a series of questions.
We held that the approach and the questioning were permissible because they were supported by an articulable reason that justified the police action taken, id. , at 213.
* * *
Our holding in De Bour relates to police officers who are engaged in their criminal law enforcement capacity. We stated that "a policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter", id. , at 219. We singled out the area of crime prevention for special mention, noting that "[s]ince this function is highly susceptible to subconstitutional abuses it will be subject to the greatest scrutiny", id. , at 220.
Id. at 189.
New York courts, even before DeBour, have not hesitated to strictly scrutinize the asserted justifications for police intrusions. The situation here appears to be similar to that envisioned by the DeBour Court, where an "anti-crime patrol" in a high-crime area of the Bronx on a summer night encounters three citizens. Accordingly, the "greatest scrutiny" should be brought to bear on the officer's actions and stated motivations.
For example, almost thirty years ago the Court of Appeals turned its focus upon "whether or not the police may restrain a citizen ostensibly for investigation and if so, in what manner." People v. Cantor, 36 NY2d 106, 109 (1975). In Cantor, officers on the street had observed the defendant in an apartment smoking what they believed to be marijuana. When he left the apartment, they followed his car and after he parked in front of his own house, their patrol car blocked him in and the plainclothes officers surrounded him. The man allegedly drew a pistol, at which point the officers identified themselves as police. Following some questioning and a full search, they arrested him. Noting that "if the initial stop of the defendant was unlawful the evidence thereafter acquired must be suppressed absent an independent establishment of probable cause," Id. at 111 (citations omitted), the Court added that, "The proscription against unreasonable searches and seizures is designed to prevent random, unjustified interference with private citizens whether it is denominated an arrest, investigatory detention, or field interrogation." Id. at 112 (citations omitted). Finding "the record barren of any objective evidence of criminal activity," Id. at 113, the Court found that the motion to suppress should have been granted.
Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment ( Terry v. Ohio, supra ). This is true whether a person submits to the authority of the badge or whether he succumbs to force. Here the defendant was deprived of his freedom of movement when he was encircled by three police officers as he stood along-side his car which was blocked by the police vehicle. At that moment he could not have proceeded on his way, therefore he was seized. ( See, e.g. , United States v. Nicholas, 448 F.2d 622; United States v. Strickler, 490 F.2d 378.)
People v. Cantor, supra 36 NY2d at 111-112. See also People v. McIntosh, 96 NY2d 521 (2001) (drug interdiction program not sufficient basis for personal inquiry of all bus passengers); People v. Washburn, 309 AD2d 1270, 1271 (4th Dept. 2003) ("reasonable suspicion standard was not met until events unfolded after the stop"); People v. Hogencamp, 295 AD2d 808 (3rd Dept. 2002) (apparent nervousness did not provide basis for reasonable suspicion; "absent a founded suspicion that criminality was afoot, defendant should have been permitted to proceed on his way without continued interference").
In People v. Rosenbluth, 4 Misc 3d 1025A (Dist.Ct. Suffolk Co. 2004) (Lawrence J. Donohue, J.D.C.), the officer was in a parking lot outside a discount department store known to be a "drug location." Id. Indeed, he had made 12 drug arrests there himself. Observing a parked car with two occupants, the officer "knocked on the window and shown his flashlight into the window. He observed that the defendant was in the driver's seat and had brass knuckles at his right foot. The passenger had loose marijuana in her hands. The defendant states, `I guess these are brass knuckles.' The officer gave the defendant a desk appearance ticket" for the brass knuckles, charging him with Criminal possession of a weapon in the fourth degree, P.L. § 265.01.
The suppression motion was granted and the charge was dismissed. Judge Donohue reasoned that, despite the officer's relying on his numerous arrests for drugs in that area as justification for his knock on the window and flashlight scan of the car interior, "there was no reason given to single out the defendant nor to interfere with his expectation of privacy within his car. Such an encounter was inherently unreasonable." Id.
As in each of the above cases, I find the police conduct to be excessive in light of the circumstances they were presented with. The sergeant testified that their purpose that evening was to actively search for and uncover drug-dealing or any other criminal activity, H.7. Officer Lopez acknowledged that she had been watching the men for several minutes and decided to stop the Defendant herself, even despite the fact that the sergeant had already done so. Clearly, in these officers' minds, three males standing around talking at that hour of night immediately placed them under suspicion. And while both officers claim the Defendant acted "furtively," each of their articulations of what actions constituted furtive behavior is, I find, unreasonable.
As noted, LaGrasta said that when the Defendant "noticed Officer Lopez, he started walking around in like a little half circle, a little nervous, getting ready to, like he didn't know if he wanted to run, throw something down. He had no idea what he was going to do." H.17. And Lopez testified similarly, that the males "were kind of huddled, three people huddled together. We started to walk toward like walking down Randall Avenue. The looked like they were going to take off, like they were shuffling around. They saw us, you can tell, while we were walking," H.64-65, . . . "They looked like they were engaged in a drug transaction at the beginning." H.66. Officer Lopez defined "furtive movements" as "To make a movement where they are like trying to hide something, moving away from you" and, in this case, the group of three was "kind of moving around." H.67. "Well, it looked like it to me. . . . They were handing they were talking to each other back and forth, they were huddling, doing, and they moved away from us when they saw us." H.72. She intended to stop and frisk Mr. Lazala because she thought he possessed drugs. H.74.
While Sgt. LaGrasta certainly had an articulable basis for approaching the Defendant to make a common law inquiry, that is all, and his initial approach with his gun drawn essentially seizing the Defendant was so completely excessive that it eviscerated any authority he possessed, rendering his subsequent actions improper. From Officer Lopez's own testimony, it is clear that the three officers constituted a roving patrol operating entirely on its own, stopping and searching people upon no more than a mere whim. "A search prosecuted in violation of the Constitution is not made lawful by what it brings to light." Byars v. United States, 273 U.S. 28, 30, 71 L. Ed. 520, 47 S. Ct. 248 (1927) (per Sutherland, J.); United States v. Di Re, 332 U.S. 581, 595, 92 L. Ed. 210, 68 S. Ct. 222 (1948) ("a search is not to be made legal by what it turns up"). See also People v. Flynn, 1 Misc 3d 908A (Sup.Ct. Bronx Co. 2004) (motivation of disgruntlement and intent to harass was insufficient to support initial stop; suppression granted). For these reasons, the gun and statements allegedly made at the scene are suppressed.
The written statement given at the station house is also suppressed, as the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); Missouri v. Siebert, ___ U.S. ___, 159 L.Ed.2d 643, 655 n. 4, 124 S.Ct. 2601, 2610 n. 4 (2004) (explaining "poisonous tree" doctrine as "evidence otherwise admissible but discovered as a result of an earlier violation is excluded as tainted, lest the law encourage future violations"). Indeed, just last year the United States Supreme Court vacated a conviction based upon a Mirandized statement that came after an arrest made without probable cause. Kaup v. Texas, 538 U.S. 626; 123 S. Ct. 1843; 155 L. Ed. 2d 814 (2003). As in that case, the People would need to point to some intervening event or other indication that the confession was freely given, and not the direct consequence of the illegal arrest, a requirement they cannot meet.