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Defendant’s Statement Was Made In Response to the Functional Equivalent of a Question Designed to Elicit an Incriminatory Response and Should Have Been Suppressed

The Third Department determined a statement made by the defendant after he had been arrested and was being transported to the police station was not “spontaneous” (as County Court found) and should have been suppressed. At the arrest scene one of defendant’s “associates” indicated defendant might have drugs in his anal cavity.  In the police car, an officer said to the defendant that he hoped defendant did not have any more drugs on him and the defendant said he probably did.  During a subsequent search drugs were found in defendant’s anal cavity. Although defendant’s statement indicating he probably had more drugs on him should have been suppressed because it was made in response to a police statement designed to elicit an incriminating response, the drugs themselves were not subject to suppression.  The Third Department determined the search which turned up the drugs was not triggered by the statement:

The admissibility of a statement made by a defendant in custody depends on whether it was “the product of ‘express questioning or its functional equivalent'” … . The operative question is whether, in context, “the officer should have known that his statement was ‘reasonably likely to evoke an incriminating response from the suspect'” … . In our view, County Court erred in concluding that the inculpatory statement was admissible because it was simply a spontaneous response to a declaration by [the officer]. For a statement to be spontaneous, it must be self-generated without “inducement, provocation, encouragement or acquiescense, no matter how subtly employed” … . Coming on the heels of [the officer’s] explanation that defendant would be searched as part of the booking process, and having been informed by the passenger that defendant may have hidden additional drugs on his person, we find [the officer’s] statement to be the functional equivalent of a question intended to elicit an incriminating response … . Since defendant was in custody and had not been given Miranda warnings, the statement should have been suppressed as involuntary. People v George, 2015 NY Slip Op 03574, 3rd Dept 4-30-15

 

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The Fact that One of Four Men Approached for a Level One Street Inquiry Ran Did Not Provide the Police with Reasonable Suspicion that Defendant, Who Obeyed the Police Commands, Was Involved in a Crime

The First Department determined that the police did not have sufficient cause to detain four men, including the defendant, on the street. The fact that one of the four men subsequently ran did not provide any additional justification for detaining defendant. The police had enough information about a near-by robbery only to justify a “level one” street inquiry of the four men, not detention.  While detained without sufficient cause, defendant was asked by the police to lift up his shirt, revealing a gun.  Absent “reasonable suspicion” of involvement in a crime, the defendant should not have been detained to await the show-up. Absent an indication defendant posed a danger to the police officers, the defendant should not have been asked to lift his shirt:

…[T]he group of men was in a location to which a group of robbers had been reported to have fled only minutes earlier, giving the officers an articulable reason for inquiring into why the men were in the area … . The question, then, is whether the encounter ever escalated to a point that the police would have been justified in holding the men at the scene while the complainant was transported to it.

…[R]easonable suspicion is a necessary predicate to a detention for a showup identification … . Further, a person’s flight is sufficient to create the reasonable suspicion necessary to escalate a level one or level two encounter to a level three detention, so long as other circumstances are attendant, such as a high-crime location and activity suggesting, although not alone creating, reasonable suspicion that the person fleeing the scene may be engaged in criminal conduct … . In all of the cases which discuss flight as the determining factor in creating reasonable suspicion, however, the defendant is the person who fled. Here, of course, defendant did not flee; he obeyed the officers’ direction to stop and to submit to their questioning. People v Thompson, 2015 NY Slip Op 03605 1st Dept 4-30-15

 

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The Defendant Had an Expectation of Privacy In an Envelope Containing His Personal Belongings—The Belongings Were Placed in the Envelope Upon Defendant’s Admission to a Hospital—Even though the Police Were Under the Impression the Defendant Was a Crime Victim, Not a Perpetrator, at the Time the Contents of the Envelope Were Examined, the Search Was Not Justified—Defendant Had an Expectation of Privacy Re: the Contents of the Envelope—The People Were Unable to Meet their “Burden of Going Forward” at the Suppression Hearing Because They Could Not Demonstrate the Legality of the Police Conduct

The Second Department ordered a new trial after determining defendant’s motion to suppress should have been granted.  Defendant was admitted to a hospital with a gunshot wound and a ring and his cell phone in his possession were placed in an envelope by hospital personnel.  Defendant was later identified as the perpetrator of a robbery who was shot by the homeowner.  The ring in the envelope had been stolen in the robbery.  At the time the police at the hospital opened the envelope, however, they were under the impression the defendant was a victim and the cell phone was examined in an attempt to identify next of kin. The Second Department held that, notwithstanding the defendant’s ostensible status as a “victim,” not a perpetrator, he had an expectation of privacy in the contents of the envelope and the police not were not justified in opening the envelope and examining its contents.  The People failed to meet their “burden of going forward” at the suppression hearing because the legality of the police conduct was not demonstrated:

“On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance'” … . Here, the People did not meet this burden. The People’s contention that the police had probable cause to search the bag containing the defendant’s personal belongings because it contained evidence of a crime is without merit … . The defendant had an expectation of privacy in his personal belongings despite the fact that he was being treated at the hospital and his belongings had been taken by hospital personnel and given to the police for the purpose of safeguarding them … . “[T]he fact that the [police] perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection” …, regardless of the Nassau detective’s testimony that the cell phone was searched for the purpose of finding next of kin information. People v Salvodon, 2015 NY Slip Op 03570, 2nd Dept 4-29-15

 

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The “Physical Intrusion” by the Police Officer (Tapping the Defendant’s Pocket) Was Not Justified by Reasonable Suspicion of a Crime—The Subsequent Frisk of the Defendant Was Similarly Not Justified—The Arrest Was Therefore Invalid–All Seized Items and Statements Made by the Defendant Should Have Been Suppressed

The First Department determined the police officer’s observations of the defendant’s actions (head turning both ways) in a “high narcotics area” justified his approach of the defendant, who was sitting in a car (founded suspicion/common-law right of inquiry).  Asking the defendant what was in his pocket after the defendant pulled his hand from his jacket was also justified. However, the officer’s “tapping” of an object in defendant’s pocket was not justified.  The intrusion (tapping the pocket) and the subsequent frisk of the defendant were not supported by reasonable suspicion of a crime or by the need to ensure the officer’s safety. The arrest was invalid and the motion to suppress all seized items, as well as the statements made by the defendant, should have been granted:

Defendant was the passenger in a vehicle stopped by the police at approximately 9 p.m. in a “high narcotics area.” As an officer approached the passenger side of the vehicle, he noticed defendant’s “head turning both ways and a lot of . . . movement coming from the area of the front passenger seat.” As he reached the passenger side window, he saw defendant, who appeared nervous, “pulling his hand from his jacket, from the fold of his jacket.” When the officer asked defendant what he “put in [his] jacket,” defendant “mumbled something unintelligible or really didn’t say much.” The officer then reached into the car, “tapped” the pocket of defendant’s jacket with the flashlight he was holding, and felt “something hard.”

The officer’s observations, up until the time he arrived at the passenger window, gave rise to founded suspicion that criminality was afoot, and so justified his question regarding what defendant had put in his pocket, which constituted a common-law inquiry … . However, we find that the physical intrusion of tapping defendant’s pocket was unauthorized. The circumstances did not give rise to the reasonable suspicion required to authorize a frisk. Nor was the officer’s conduct justifiable as a “minimal self-protective measure”…, which is permissible in furtherance of the common-law right of inquiry, where sufficient concerns for personal safety are present … . The circumstances, viewed as a whole, did not suggest any need for the officer to take such a precaution. At the time of the officer’s intrusion, defendant was not reaching for an area where a weapon might be located, there was no suggestion that a weapon was present or that violence was imminent, and there was no other basis for a self-protective intrusion.

Because the ensuing frisk outside the car, and the resulting arrest, depended on the initial improper intrusion, they were invalid as well. In any event, we also find that the search of the plastic bag following defendant’s arrest was not supported by exigent circumstances … . People v Butler, 2015 NY Slip Op 03458, 1st Dept 4-28-15

 

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Statutory Presumption of Possession of Weapons Recovered from Vehicle Confers on Vehicle-Occupants Automatic Standing to Move to Suppress

The First Department determined the People were relying exclusively on the statutory presumption that weapons recovered from inside a vehicle are possessed by all the occupants.  Therefore, the defendant had standing to move to suppress the weapons:

In opposition to defendant’s assertion that the weapon possession charges were based solely on the statutory presumption that weapons recovered from the interior of an automobile are deemed to be possessed by all its occupants (Penal Law § 265.15[3]), the People failed to “point to evidence reasonably tending to show the defendant’s actual or constructive possession” of the two pistols … . Instead, the People asserted that the statutory presumption did not apply, claiming erroneously that the two handguns at issue were recovered from the person of one of the car’s passengers (see Penal Law § 265.15[3][a]). The People concede on appeal that this argument was incorrect, because the two pistols (unlike a revolver found on the person of a passenger) were in fact recovered from a box on the back seat. There is no indication that the motion court relied either on the grand jury minutes or the search warrant affidavit. Because the People failed to adequately demonstrate that the charges relating to the two pistols were not based entirely on the statutory presumption, defendant had automatic standing to challenge seizure of those weapons … . People v Rivera, 2015 NY Slip Op 03396, 1st Dept 4-23-15

 

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Concise Description of the Application of the DeBour Street-Encounter Criteria Leading to the Seizure of a Weapon

The Second Department, in finding the seizure of a gun from the defendant proper, provided a concise application of the DeBour street encounter factors:

The arresting officer testified that he saw, from a distance of “[l]ess than a foot” away, “what looked to be” “two to three inches” of “the butt of a firearm” that was “pulling down” the defendant’s rear pants pocket. These observations gave the officer an objective, credible reason to approach the defendant … . Upon seeing the officer, the defendant immediately turned sideways to obscure his rear pants pockets from the officer’s view, giving the officer a “founded suspicion that criminal activity [was] afoot,” justifying greater intrusion to conduct an inquiry … . At that point, when the defendant lowered his hands in the direction of his waist area, the officer had reason to suspect that he was in danger of physical injury and was authorized to conduct a protective frisk (see CPL 140.50[3]…). Probable cause for the defendant’s arrest arose after the officer grabbed the defendant’s hands for his own safety and, upon “wrestling” with the defendant, saw that the item in the defendant’s back pocket was, in fact, a firearm … . Thus, the record establishes that the officer’s conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed … . Moreover, given the legality of the officer’s actions, the defendant’s claim that his post-arrest statement to police should be suppressed as the product of an illegal search or seizure is without merit… . People v Owens, 2015 NY Slip Op 02790, 2nd Dept 4-1-15

 

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Frisk Not Justified Under DeBour Analysis

The Fourth Department determined the police officer did not have reasonable suspicion defendant was committing a crime and had no reasonable basis to suspect he was in danger at the time he frisked the defendant:

It is well established that, in evaluating the legality of police conduct, we “must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter” (…People v De Bour, 40 NY2d 210, 215). In De Bour, the Court of Appeals “set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; [and] level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime” (People v Moore, 6 NY3d 496, 498-499).

Here, contrary to defendant’s contention, we conclude that the information provided in the 911 dispatch coupled with the officers’ observations provided the police with “an objective, credible reason for initially approaching defendant and requesting information from him” … . The officers pulled up next to defendant and, without exiting the vehicle, asked to see defendant’s identification and asked defendant where he was going and where he was coming from, which was a permissible level one intrusion … .

Contrary to the further contention of defendant, we conclude that his failure to answer the officers’ questions about where he was going and where he was coming from, when added to the information acquired from the police dispatch and defendant’s heightened interest in the patrol car, created a “founded suspicion that criminality [was] afoot,” justifying a level two intrusion … . The common-law right of inquiry “authorized the police to ask questions of defendant—and to follow defendant while attempting to engage him—but not to seize him in order to do so” … . The police therefore acted lawfully in following defendant for the purpose of obtaining an answer to their valid questions about his whereabouts. The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant’s hand and patted the outside of his pants pocket. “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime” … . ” [W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that the officers are in physical danger and that defendant poses a threat to their safety’ “* * * …[U]nlike in other cases where we have sanctioned a frisk for weapons, there was no evidence in this case that defendant refused to comply with the officers’ directives or that he made any furtive, suspicious, or threatening movements … . Indeed, under the circumstances of this case, the presence of defendant’s hand in his left pants pocket was particularly innocuous and ” readily susceptible of an innocent interpretation’ ” … . Defendant retrieved his identification from his left pants pocket and returned it to that pocket after complying with the officers’ request to produce identification … .

We therefore conclude that, “[b]ecause the officer lacked reasonable suspicion that defendant was committing a crime and had no reasonable basis to suspect that he was in danger of physical injury, . . . the ensuing pat frisk of defendant was unlawful” … . People v Burnett, 2015 NY Slip Op 02613, 4th Dept 3-27-15

 

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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

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Nervous and Uncooperative Actions by Defendant Justified Search of Area Inside Defendant’s Car After Defendant Was Out of the Car and Had Been Frisked

The First Department, over a dissent, determined the nervous and uncooperative actions of the defendant justified the warrantless search of a bag inside the car defendant was driving, after defendant was outside the car and had been frisked:

The testimony supports the trial court’s finding that the facts available to the officers, including defendant’s furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions, went beyond mere nervousness. Rather, defendant’s actions both inside and outside of the vehicle created a “perceptible risk” and supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat, which justified the limited search of that area, even after defendant had been removed from the car and frisked … . People v Hardee, 2015 NY Slip Op 02573, 1st Dept 3-26-15

 

Escalating Intrusiveness of Police-Encounter with Defendant Justified Under DeBour Criteria—Criteria Explained and Applied

The Second Department, over a dissent, determined the arresting officer, Schwizer, properly escalated the intrusiveness of his encounter with the defendant (under the DeBour criteria) based upon the actions of the defendant:

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” …, the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality … . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .

“Encounters between citizens and the police in public places are of an endless variety with no two being precisely alike” … . Here, Schwizer properly exercised his common-law right of inquiry when he initially encountered the defendant, as the defendant matched the general description of a man with a gun at the subject location … .

At this stage in the encounter, absent reasonable suspicion of criminal activity, Schwizer could not forcibly detain the defendant … . However, during his common-law right of inquiry, Schwizer was permitted to ask the defendant to show or raise his hands as a self-protective measure … .

The defendant’s failure to comply with Schwizer’s request to show his hands, coupled with the nature of the report, and the presence of the defendant’s hands in his waist area, escalated the encounter and justified Schwizer’s conduct in grabbing the defendant’s hands as a self-protective measure … . Once Schwizer felt the firearm in the defendant’s waist area, he was furnished with reasonable suspicion … . People v Abdul-Mateen, 2015 NY Slip Op 02489, 2nd Dept 3-25-15

 

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