For the People: Queens County District Attorney's Office by ADA Rebecca Borges, Esq. For the Defendant: The Legal Aid Society by Evan Sugar, Esq.
For the People: Queens County District Attorney's Office by ADA Rebecca Borges, Esq. For the Defendant: The Legal Aid Society by Evan Sugar, Esq. Peter F. Vallone Jr., J.
The Court conducted a Mapp/Huntley/Dunaway hearing on November 20, 2017 on defendant's motion to suppress property and statement testimony. After hearing the testimony and reviewing the evidence in the above case, the Court makes the following factual findings and legal conclusions.
FINDINGS OF FACT
The People called Police Officer Richard Ernyey as their only witness. Officer Ernyey, a five year veteran of the New York City Police Department, testified that on August 7, 2016, he was assigned, along with his partner (Officer Spicer) to patrol duty in the confines of the 113th Precinct.
Officer Ernyey testified that he and his partner, who were in uniform in a marked RMP, received a radio run for a burglary in progress around 7:30 PM, in the vicinity of 180th Street and Linden Boulevard. He testified that they were backup to the sector who received the actual call. The radio run stated there was a burglary in progress, two black males, the description was one male was wearing a shirt with flowers and the other male was wearing a white shirt. Officer Ernyey testified that he made a left onto 180th Street and at corner of Linden Boulevard he observed two males fitting the description. The officer testified that the males were by a car when he stopped them for questioning. Officer Ernyey stated the two males had their backs to the car where they were stopped, and that he and his partner had their backs to the patrol car facing the two suspects.
The officer further testified that while he was speaking to one of the males, he observed "a baggy of what seemed to be marijuana" sticking out of his pants pocket. When questioned which individual he was referring to, the officer stated the male wearing a white shirt and a backpack, and further identified said male as the defendant herein. Officer Ernyey stated he pulled the bag out of defendant's pocket and confirmed that the substance was marijuana. He further testified, "at that point the backpack that he was wearing I opened it to see if there was any more marijuana in it". Ernyey stated that upon opening the front pouch he found thirteen fake credit cards, and a laptop computer in the large pouch. When asked what the cards were, the defendant stated to the officer they were fake. When questioned about the laptop, the defendant told Officer Ernyey he was using the laptop to learn how to get into the business of making fake cards. The officer testified that the defendant was not in handcuffs at this time, and none of the officers had their guns drawn. Officer Ernyey testified he then placed the defendant under arrest.
Hearing transcript, page 8, lines 7-8.
Hearing transcript, page 10, lines 4-5. --------
Conclusions of Law
At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct (People v Berrios, 321 NYS2d 884 ; People v Spann, 918 NYS2d 588 ; People v Blinker, 80 AD3d 619 ). Once this burden is met, the burden shifts to the defendant to prove the illegality of the police conduct (People v Berrios, supra).
Further, it is clear that the hearing court's determination of the credibility of a witness must be accorded great weight (People v Prochilo, 395 NYS2d 635).
It is well settled that "All warrantless searches presumptively are unreasonable per se," and, thus, "[w]here a warrant has not been obtained, it is the People who have the burden of overcoming" this presumption (People v Hodge, 44 NY2d 553 ; see also People v Calhoun, 49 NY2d 398 ). In order to justify a warrantless search incident to arrest, the People must meet two separate requirements. First that the spatial and temporal limits are "not significantly divorced in time or place from the arrest" (People v Smith, 59 NY2d 454 ; see also People v Gokey, 60 NY2d 309 ; People v Langen, 60 NY2d 170  ).
The second requisite is that the People demonstrate the presence of exigent circumstances (People v Gokey, supra; and People v Smith, supra). In the context of warrantless searches of closed containers incident to arrest, the People bear the burden of demonstrating the presence of exigent circumstances in order to invoke this exception to the warrant requirement (People v Jimenez, 22 NY3d 717 ).
In People v Thompson (118 AD3d 922 ), the Second Department held that the People failed to establish exigent circumstances where the detective did not testify that he searched the backpack out of concern for the safety of himself or the public, and the evidence did not support a reasonable belief that the backpack contained a weapon or a need to protect against destruction of evidence (People v Gokey, 60 NY2d 309 ; People v Warner, 94 AD3d 916; People v Hernandez, 40 AD3d at 779; People v Green, 258 AD2d 531).
The Second Department held in People v Anderson (142 AD3d 713 ), there were no exigent circumstances to support warrantless search of defendant's messenger bag following his arrest for burglary. The testimony proffered by the police officer at the suppression hearing did not indicate that the suspect was armed; that the officer had any concern about his own safety or the safety of the public; or that the circumstances of the defendant's arrest gave rise to a reasonable belief that his bag contained either a weapon or destructible evidence. Therefore, the court should have granted the defendant's motion to suppress the physical evidence (People v Jimenez, 22 NY3d 717; People v Gokey, 60 NY2d 309; People v Hernandez, 40 AD3d 777; People v Vega, 256 AD2d 730).
Further, it is well established that evidence seized from the defendant's person, and/or statements made by him, which were made only after and as a result of the illegal search, were fruits of the poisonous tree and therefore were inadmissible (People v Young, 81 AD2d 843 ). The Second Department held that the hearing court correctly granted the defendant's motion to suppress his statement made following the illegal search of his bag, regarding his ownership of the gun found, as that statement was fruit of the poisonous tree (People v Isaacs, 101 AD3d 1152 ; People v Holmes, 89 AD3d 1491).
As to this matter, and more specifically the Dunaway portion, the Court finds that the initial stop of the defendant was lawful. Inasmuch as the defendant fit the description given in the radio run, was found in the vicinity of the location of the incident within a short period of time after the reported burglary, the police had probable cause to stop and question the defendant.
As to the Mapp portion, and specifically regarding the bag of marijuana seized from the defendant's pants, defendant's motion for suppression is denied. The officer testified that the bag with what seemed to be marijuana was visible and in plain view. It is well settled that under the "plain view doctrine, law enforcement officers may properly seize an item in plain view without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent (People v Brown, 96 NY2d 80 ).
Defendant also seeks to suppress the credit cards and laptop seized and the defendant's statements relating thereto. The testimony of Officer Ernyey failed to establish any reasonable belief that he was concerned for his safety, or that there was a weapon, or a threat of destruction of the evidence which would permit a warrantless search. In fact the People's witness, Officer Ernyey testified that he opened the backpack to see if there was any more marijuana in it.
The People argue that the contents of the backpack would had inevitably been discovered, either when the backpack was secured during transport, or at the precinct during an inventory search. The court finds there was no evidence presented which would have established that the defendant would in fact be arrested had the police officer not searched the backpack, thereby resulting in discovery of the contents of the backpack. Accordingly, the defendant's motion is granted to the extent that the credit cards and the laptop are suppressed.
Further, as to the Huntley portion, defendant's statements pertaining to the credit cards and the laptop, are deemed inadmissible as fruit of the poisonous tree, and therefore defendant's motion to suppress defendant statements is granted.
This constitutes the decision and order of the Court. DATED: December 14, 2017 Kew Gardens, NY PETER F. VALLONE JR., A.J.S.C.