People v Amico
Annotate this CaseDecided on May 17, 2006
Criminal Court of the City of New York, Queens County
The People of the State of New York
against
Salvatore Amico and ROBERT MARTIN, Defendants.
2005QN036659
Gene R. Lopez, J.
The defendants are charged with one count of attempted criminal trespass in the second degree in violation of Penal Law §110/140.15 and one count of possession of burglar's tools in violation of Penal Law §140.35. The defendants have moved to suppress physical evidence and statements as a result of an unlawful arrest. This court conducted a Mapp/Huntley/Dunaway hearing on March 17, 2006. This written decision supplements the ruling previously rendered on April 7, 2006. At the hearing, Police Officer Bracken ("Officer Bracken") testified on behalf of the People. I find Officer Bracken to be credible. The defendants did not testify nor present any witnesses.
Officer Bracken is a six year veteran of the New York City Police Department and has been with the Anti-Crime Unit for two years. On August 3, 2005, he and his partner, Officer Bahrenburg were on anti-crime patrol in an unmarked police car. Officer Bracken, who was in plainclothes, was the recording officer. At about 2:20 a.m., Officer Bracken observed the defendants in front of 96-13 Metropolitan Avenue in Queens County moving trash bags away from the stationery store towards the street.[FN1] Officer Bracken described this area as commercial. Officer Bracken further observed the defendants pulling on the locks of the metal security gate which was drawn at the store's location. Officer Bracken also observed the defendants attempt to push the gate upwards and he then observed defendant Amico place an object, approximately 18 inches in length, through the loop of the lock and try to pull on the lock. When an automobile approached the location, the defendants stopped, stepped away from the gate and watched the automobile. When the automobile passed, the defendants returned to the metal gate.
Officer Bracken then observed the defendants walk towards the rear of the store and soon after the defendants entered a vehicle which had been parked in front of the stationery store. Defendant Amico was the driver and defendant Martin entered the front passenger seat. Defendant Amico made an illegal U-turn and the officers, with the use of their lights, stopped the [*2]vehicle. Officer Bracken and his partner exited their police vehicle and approached the defendants' car. Officer Bracken walked towards the passenger's side of the car and Officer Bahrenburg walked towards the driver's side. Officer Bracken shined his flashlight into the vehicle and observed in the back seat, a crowbar and/or a tire iron, a pair of gloves, a pair of flashlights and screwdrivers.
Officer Bahrenburg asked the defendants to exit the car and Officer Bracken asked them "what they were doing around this neighborhood at this time." Defendant Martin replied that "he got out to take a piss" and defendant Amico replied that "he never even got out of the car at all." Officer Bracken could not recall whether the question posed to the defendants occurred before or after they were informed they were under arrest and handcuffed.
With permission from defendant Amico, Officer Bracken recovered from the trunk of the car, assorted video tapes, playing [cards], cigarettes, candy, batteries, four tire irons, a red crow bar and some screwdrivers. Officer Bracken could not recall who asked defendant Amico for his permission or how the trunk was opened. At the precinct, these items were vouchered as arrest evidence. After inspecting the locks and gate of the stationery store, Officer Bracken did not observe any damage to these items.
Officer Bracken observed defendant Amico make an illegal U-turn and thus, the stop of defendants' vehicle was lawful. (See People v Ingle, 36 NY2d 413 [1975]; People v Bryon, 4 Misc 3d 1024[A][Sup Ct, Bronx County 2004]. ) Officer Bracken observed in the back seat of the car a crowbar and/or a tire iron, a pair of gloves, a pair of flashlights and screwdrivers. Prior to the stop of defendants' vehicle, Officer Bracken observed the defendants pulling and pushing a closed metal security gate of the store in an attempt to open such gate. When a car passed, the defendants stopped such actions and once the car drove away, the defendants resumed such behavior. Defendant Amico was seen using an object in attempt to pry open one of the locks of the gate. The defendants were seen walking towards the rear of the store. All these observations coupled with the items in the back seat of the car gave Officer Bracken probable cause to arrest the defendants and to seize such items. (See People v Blasich, 73 NY2d 673 [1989]; People v Murriel, 75 AD2d 628 [2d Dept 1980].)
At the scene, in response to questioning by Officer Bracken, the defendants made statements to the officer. Miranda warnings were necessary if the statements were made as a result of custodial interrogation. (Miranda v Arizona, 384 US 436 [1966].) There is no dispute that the defendants were questioned and that the defendants did not receive Miranda warnings. The issue is whether the defendants were in custody. The test is "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." (People v Yukl, 25 NY2d 585, 589 [1969].) In this case, Officer Bracken could not recall whether the defendants made their statements before or after they were placed under arrest and handcuffed. Inasmuch as it is unclear whether the defendants were arrested at the time the statements were made and that the People have the burden of proof as to the voluntariness of the defendants' statements beyond a reasonable doubt, the defendants' motions to suppress the statements is granted. (People v Huntley, 15 NY2d 72, 78 [1965].)
As to the items recovered from the trunk of the car, the People maintain that defendant Amico consented to the search of the trunk. The People bear a "heavy burden of proving voluntariness of the purposed consents." (People v Gonzalez, 39 NY2d 122, 128 [1976].) [*3]"Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implied, overt or subtle." (Id.) The Court of Appeals listed four factors in considering the voluntariness of defendant's consent. They are: "whether the consenter is in custody or under arrest, and the circumstances surrounding the custody or arrest;" "the background of the consenter;""whether the consenter has been, previously to the giving of the consents, or for that matter even later, evasive or un-co-operative with the law enforcement authorities;" and "whether a defendant was advised of his right to refuse to consent." (People v Gonzalez, 39 NY2d at 128-130.) Inasmuch as Officer Bracken only testified that defendant Amico consented to the search of the trunk upon being asked by an officer, the People have not demonstrated that defendant Amico voluntarily consented to the search.
Accordingly, this court finds that probable cause existed for defendants' arrests. The defendants' motions to suppress the physical evidence recovered from the back seat of the vehicle are denied. The defendants' motions to suppress the physical evidence recovered from the trunk of the vehicle are granted. The defendants' motions to suppress the statements are granted.
The foregoing is the decision and order of the court.
Dated:May 17, 2006
Queens County, New York
________________________________
GENE R. LOPEZ
J.C.C.
Footnotes
Footnote 1: Also present at the scene was Travis Martin who on September 15, 2005 pleaded guilty to disorderly conduct.
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