People v Gutierrez

[*1] People v Gutierrez 2005 NY Slip Op 51063(U) Decided on April 4, 2005 District Court Of Nassau County, First District Kluewer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2005
District Court of Nassau County, First District

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff(s)

against

Hugo Gutierrez, DEREK GANSHAM, JULIE ROBERTS and STEVEN GANSHAM, , Defendant(s)



NA 25827/03



Honorable Denis Dillon, District Attorney

Daniel J. Halloran, Esq. (Attorney for Defendant Hugo Gutierrez)

Doric Sam, Esq.

(Attorney for Defendants Derek Gansham & Steven Gansham)

Anthony J. Colleluori, Esq. (Attorney for Defendant Julie Roberts)

Susan T. Kluewer, J.

Defendants' joint application to suppress tangible evidence retrieved from a car in which each of them was riding, and statements each made to police, is granted. [*2]

Each of the above-named defendants is charged, separately, with criminal possession of a weapon in the fourth degree (see Penal Law § 265.01[1]) and each is alleged to have been acting in concert with the other three. Defendant Gutierrez is additionally charged with criminal mischief in the fourth degree (see Penal Law § 145.00[1]) on account of an incident related to and arising on the same date as the weapons charges. Upon motion of the Gansham defendants, I directed that a hearing be conducted to determine whether tangible evidence, or written statements these defendants made to police, should be suppressed as products of an unlawful search or seizure, and if not, whether the statements should be suppressed on account of a failure to observe the requirements of Miranda v. Arizona (384 US 436, 444 [1966]). The People thereafter consented to the participation of Defendants Gutierrez and Roberts in a joint hearing on the same issues. The combined, joint hearing was conducted before me on February 17, 2005 and February 22, 2005. Four witnesses testified: Police Officer Stephen Firestone, Police Detective James Knoblach, Police Detective John Clinton and Police Detective Michael Gilbride. Each did so on the People's behalf.

Officer Firestone testified that, on November 27, 2003 at about 4:40 a.m., he was on motor patrol duty in Inwood when he got a radio call with a "report of shots fired" and a directive to report to Beckman and Piza Streets in Inwood. He is familiar with the area and

testified that Piza Street is a side street that "comes off of Doughty Boulevard, which is one block south of Burnside Avenue" just 1 ½ blocks away from his then location. Officer Firestone further testified that he proceeded on Doughty Boulevard on his way to the designated location when he observed a car "one block east" coming off a side street "which was in the direction of where the shots fired call came [from];" that there was no other traffic on the road; that he followed the car; that he "put the plate number over the radio" to the dispatcher; that he learned that the car was registered at a Cambria Heights address "[q]uite some distance [several miles] away;" that he followed the car for about ½ mile until back-up arrived; and that, using the emergency lights, the spotlight, and the siren, he pulled the car over, got out a of his own car, and approached the driver's side of the pulled-over car. At the hearing, Officer Firestone identified each Defendant as an occupant of the car, including Defendant Steven Gansham as the driver. He next testified that he had Defendant Steven Gansham shut the car off; that he noticed that Defendant Gutierrez, who was in the back seat, had blood on his shirt and hands; that he had Defendant Gutierrez step out of the car and step to its rear; that officers put Defendant Gutierrez in handcuffs; that the other occupants were thereafter removed from the car and placed in handcuffs; that he (Officer Firestone) then noticed a tree branch in the car's back seat where Defendant Guttierez had been sitting; that he took the tree branch out and saw that it had blood on it; that he then saw a small bulge underneath the right hand side of the back of the car, where Defendant Derek Gansham had been seated; and that he lifted up the floor mat and removed "from underneath [the] clear plastic floor mat" in the back seat area a "380 handgun with a black handle." [*3]

Officer Firestone testified about statements Defendant Gutierrez and Defendant Steven Gansham made at the stop scene after each Defendant had been removed from the car and handcuffed. He thus testified that, in response to a question about the blood on his shirt and hands, Defendant Gutierrez stated, in effect, that he broke a car window and cut himself in the process, and that, after overhearing a police radio transmission about the gun shots, Defendant Steven Gansham stated "nobody fired any gun." The People apparently have no intention of using these statements at trial. Officer Firestone further testified that the Defendants were formally placed under arrest at about 5:45 a.m., and that they were transported to the Fourth Precinct, where they were processed and formal statements were taken. On cross-examination, Officer Firestone acknowledged that the "report of shots fired" call giving rise to the stop of Defendants' car did not include any indication of the number of people involved, did not indicate that he, she, or they had been traveling by car, and,

indeed, did not include even a vague description of any person involved. He also acknowledged that there are two ways to travel out of the "report of shots fired" location by car and, by implication, several more ways by foot. He further acknowledged that the run of the plate of Defendants' car revealed no outstanding warrants or violations, that the driver of the car committed no traffic offenses in his presence, and that none of its occupants made any furtive or suspicious movements. When asked why he pulled the car over, Officer Firestone testified that he premised his decision to do so on the Cambria Heights address of the registered car owner, the contents of the radio run, his 15 years' police experience, his knowledge of the location, about which he did not elaborate, and that the car he pulled over was the only one on the road. He then acknowledged that the stop was "investigative" and that his decision to pull the car over was based on a "hunch" that something was wrong. Although Officer Firestone did not expressly so testify, it is plain that neither he nor any other officer at the scene asked any Defendant any questions before police serially removed all of them from the car, handcuffed each of them, and searched the car.

Each of the remaining witnesses testified about the circumstances surrounding the taking of a formal statement from a particular defendant. Because of my determination that there was no basis to stop the car in which each defendant was riding, thus requiring suppression of all ensuing evidence (see e.g., Wong Sun v. United States, 371 US 471 [1963]; People v. Cantor, 36 NY2d 106, 365 NYS2d 509 [1975]), I do not reach either the issue of whether any statement was taken in violation of the requirements of Miranda v. Arizona (supra), or the related issue of whether any formal statement was improperly influenced by un-Mirandized statements made at the scene.

The stop of a car traveling on a public roadway is a limited seizure akin to that of the forcible stop of a pedestrian (see People v. Spencer, 84 NY2d 749, 622 NYS2d 483 [1995]; cf. People v. DeBour, 40 NY2d 210, 386 NYS2d 375 [1976]). In order to make such a stop, police must thus have at least a reasonable suspicion that the car's driver or occupants have [*4]committed, are committing, or are about to commit a crime (id.). To be reasonable, a suspicion must be based on specific, objective facts and not the product of whim, discretion, or hunches (id.; see also People v. Cantor, supra; and see People v. Sobotker, 43 NY2d 559, 402 NYS2d 993 [1978]). Moreover, assuming reasonable suspicion exists, once safety concerns are addressed by patting down or securing the detainee and his or her grabable area, police are not at liberty to search a car pursuant to the "automobile exception" to the warrant

requirement unless there is justification for that higher level of intrusion, i.e, both probable cause to arrest and probable cause, or at least more than a reasonable suspicion to believe that the car contains either contraband or evidence of the crime for which the detainee has been arrested (see People v. Torres, 74 NY2d 224, 544 NYS2d 1989]; and see People v. Carvey, 89 NY2d 707, 657 NYS2d 879 [1997]; cf. People v. Ellis, 62 NY2d 393, 477 NYS2d 106 [1984]; People v. Langen , 60 NY2d 170, 469 NYS2d 44 [1983]; People v. Belton, 55 NY2d 49, 447 NYS2d 873 [1982]). Finally, it is well settled that police may not justify the forcible stop of a car by an after-acquired reasonable suspicion, just as a search may not be justified by its fruits (People v. Sobotker, supra; People v. DeBour, supra).

At the time Officer Firestone forcibly stopped Defendants' car, he had not yet been to the scene of the "report of shots fired" call, had had no verifying communication with those fellow police officers who had reached its location, and thus had absolutely no confirmation that the report itself had any basis (cf. People v. Brooks, 266 AD2d 864, 697 NYS2d 804 [4th Dept. 1999]; see People v. DeBour, supra). That the car he was following without any knowledge that a car, let alone that one, was somehow involved was lawfully registered to someone who lived in a neighboring community hardly justifies the stop, and it is not unlawful to be the only car on the road at an early morning hour, even in proximity to a location that is the subject of a police call (cf. People v. Sanchez, 276 AD2d 723, 714 NYS2d 521 [2d Dept. 2000]; People v. Brooks, supra; and see People v. Howard, 50 NY2d 583, 430 NY2d 578 [1980]). That the car's driver violated no provisions of the Vehicle and Traffic Law, that its occupants engaged in no furtive or suspicious conduct, and that Officer Firestone had no idea, either for whom he should be looking, or how he, she, or they might be traveling, confirm that the determination to stop the car was based on pure "hunch," which, as noted above, is an inadequate basis for even a limited seizure (People v. Spencer, supra; People v. Sobotker, supra; People v. DeBour, supra; People v. Cantor), however brilliant the fruits of the intrusion prove that hunch to be (People v. Sobotker, supra; People v. DeBour, supra). Thus, Officer Firestone's observations at the scene of the stop Defendant Gutierrez' bloody shirt and hands, the bloody tree branch cannot be used to retroactively justify the stop, and, indeed, it appears that those observations are inadequate to justify the further intrusion of lifting up a floor mat to discover the gun (see People v. Carvey, supra; People v. Torres; People v. Ellis, supra; People v. Langen, supra; People v. Belton, supra). In any event, I conclude there was no basis, at the outset, for the forcible stop of the car, particularly given the availability of less intrusive alternatives (cf. People v. [*5]Spencer, supra; People v. DeBour, supra). For instance, having properly retrieved the

address of the registered owner of the car he was following, Officer Firestone could have proceeded to the location of the "report of shots fired" call, obtained actual facts from officers conducting the investigation at that scene, and then made investigatory or other permissible inquiry at the address he had acquired.

This constitutes the decision and order of the court.

So Ordered.