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Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause

The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:

…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … .

…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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Case Sent Back to Suppression Court to Determine Whether Police Had Sufficient Reason for Asking About Drugs and Weapons After Traffic Stop

The Fourth Department sent the case back for a determination whether the police had a founded suspicion of criminal activity to justify an inquiry about the presence of drugs of weapons after a traffic stop:

We agree with defendant that Supreme Court erred in refusing to suppress the gun recovered from the vehicle based upon the inevitable discovery doctrine.  The testimony at the suppression hearing established that, during a lawful traffic stop, one of the police officers asked defendant whether there were any drugs or weapons in the vehicle before instructing defendant to exit the vehicle.  After defendant admitted to having marihuana on his person, the police officer asked defendant to exit the vehicle and, following suspicious behavior by another occupant of the vehicle, searched the vehicle and found a gun in plain view.  Notably, the court did not address whether the officer had the requisite founded suspicion of criminal activity to justify an inquiry concerning the presence of drugs or weapons in the vehicle … . Instead, the court refused to suppress the gun on the ground that the police “could” have taken various actions after the traffic stop that would have inevitably led to the discovery of the gun.  The People, – however, did not raise the inevitable discovery doctrine as a ground for denying suppression of the gun, nor did they meet their burden of “demonstrat[ing] a very high degree of probability that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source”… . People v Sykes, 849, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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Checkpoint Vehicle Stop Illegal

The First Department determined a vehicle checkpoint stop to control automobile thefts was unconstitutional:

The suspicionless vehicle checkpoint stop that led to the recovery of contraband in this case was constitutionally impermissible because the primary purpose of the checkpoint was “essentially to serve the governmental interest in general crime control” … . It is undisputed that the primary purpose of the checkpoint was to deter or control auto theft. Contrary to the People’s assertions, the interest in “controlling automobile thefts,” as described in this case, “is not distinguishable from the general interest in crime control” … . Under the applicable precedents, a secondary goal of promoting highway safety does not justify a checkpoint stop. People v Velez. 2013 NY Slip Op 06437, 1st Dept, 10-3-13

STREET STOPS, SUPPRESSION, SEARCH AND SEIZURE

Furtive Behavior Justified Pat Down Search

The Fourth Department determined the police properly searched (frisked) the defendant after a valid vehicle-stop based on his “furtive” behavior:

As defendant correctly concedes, the police officer lawfully stopped defendant’s vehicle because it had a broken taillight …, and defendant voluntarily exited the vehicle.  Given defendant’s furtive behavior before and after exiting his vehicle, including being “fidgety” and “evasive” when answering the police officer’s questions, turning the right side of his body away from the police officer, and placing his right hand in his jacket pocket, the police officer “reasonably suspected that defendant was armed and posed a threat to [his] safety” … .  “Based upon [his] reasonable belief that defendant was armed, the officer[] lawfully conducted [the] pat frisk” that resulted in the seizure of the gun … . People v Carter, 965, 4th Dept 9-27-13

 

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Defendant Was Lawfully Seized by Police Under these Facts

The Fourth Department affirmed Supreme Court’s denial of defendant’s suppression motion, finding that the defendant was not unlawfully seized under the following facts:

At the suppression hearing, a police officer testified that he stopped defendant because defendant was riding the motorbike in the road without a helmet.  When the officer asked defendant whether he had any identification, defendant answered, “no,” and took a step back, whereupon the officer reached toward defendant in an attempt to frisk him.  Before the officer could detain him, however, defendant ran away and, during his flight, punched another officer who had joined in the pursuit. Defendant was soon apprehended and found to be in possession of a loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. People v Bradley, 685, 4th Dept 7-5-13

STREET STOPS, SEARCH AND SEIZURE

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County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

“Mere Nervousness” Does Not Justify Police Inquiry/ More than “Mere Nervousness” in this Case

In finding that the police inquiry was proper because it was prompted by more than merely the defendant’s nervousness (which would not have been sufficient for a suspicion of criminality), the First Department explained:

The Court of Appeals’ decision in People v Garcia (20 NY3d 317 [2012]) does not dictate a different result. In Garcia defendant’s vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted “furtive[ly]” by “stiffen[ing] up and “looking behind” upon being pulled over (id. at 320). The Court of Appeals agreed with this Court that a defendant’s nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. Here, however, apart from seeming nervous, defendant was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike Garcia, where the alleged “furtive” behavior was consistent with nervousness over being pulled over, here, defendant’s attempt to block the … officers’ view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These circumstances were sufficient to give the police the requisite founded suspicion to approach and question defendant.  People v Loretta, 2013 NY Slip Op 04562, 1st Dept, 6-18-13

STREET STOPS

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Pat-Down Search After Stop for Traffic Infractions Okay

The Third Department determined the police officer [Negron] properly asked defendant to get out of his car, and properly conducted a pat-down search, after a vehicle-stop for traffic infractions:

…[O]fficers may exercise their discretion to require occupants to exit a vehicle once a lawful traffic stop has been effected, out of a concern for safety and without particularized suspicion….  Furthermore, a pat-down search of a suspect’s outer clothing is reasonable and constitutionally permissible when  an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety… .

Here, the entire encounter took place after dark in an area to which Negron had frequently responded to reports of gang activity, drug sales, fights and  shootings. Negron testified that he was familiar with defendant from his prior criminal activity and that defendant had been violent toward police in the past and had twice been charged with resisting arrest. After defendant exited the vehicle, Negron noticed bulges in the pockets in defendant’s “grabbable” area, which Negron defined as the hot zone that defendant’s hands could access quickly from their normal resting position. Defendant subsequently declined to answer the question as to whether he was in possession of any weapons or drugs, prompting Negron to conduct the pat frisk that ultimately revealed a concealed handgun. Thus, considering the circumstances in their totality, we find that the officer possessed a reasonable basis to perform a pat-down search of defendant for the presence of weapons… .  People v Issac, 104854, 3rd Dept, 6-6-13

SUPPRESSION

 

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Confidential Informant Provided Reasonable Suspicion for a Vehicle Stop; Information Vehicle Occupants Were Armed Justified Stop with Guns Drawn

The Third Department determined that information from a confidential informant provided reasonable suspicion sufficient to justify an investigatory vehicle stop and noted that a vehicle stop with guns drawn did not ripen into an arrest where the police had reliable information the occupants of the vehicle were armed:

We reject defendant’s contention that removing him from the vehicle at gunpoint constituted an arrest without probable cause. An investigatory stop will not ripen into an arrest based upon the use of weapons by the police when they have reason to believe that the suspects are armed and dangerous, and here the police had been advised that defendant and the other individual were armed … .  People v Coffey, 104496, 3rd Dept, 6-6-13

SUPPRESSION

 

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“Plain View” Doctrine Does Not Require Certainty Seized Item Is Contraband

In affirming the denial of a suppression motion, the First Department determined that the chain of events observed by the arresting officer before the stop of defendant’s vehicle led to the proper application of the “plain view” doctrine for the seizure of contraband.  Defendant was seen going into a store (which was a frequent target of thieves) with a large empty bag and coming out of the store with the bag visibly heavier and fuller.  After a vehicle stop (the stop was not contested or discussed in the decision), the defendant gave answers to questions that contradicted what the officer had observed and the officer saw a large amount of over-the-counter medications in the bag.  In finding the seizure of the bag justified under the “plain view” doctrine, the Court said:  “The plain view doctrine does not require certainty or near certainty as to the incriminating nature of the items.  Instead, it ‘merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief …that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.  A practical, nontechnical probability that incriminating evidence is involved is all that is required’ …”.  People v Taylor, 9439, 6265/10, 1st Dept. 3-7-13​

STREET STOPS, SUPPRESS, SEARCH

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