People v Glover

[*1] People v Glover 2009 NY Slip Op 51482(U) [24 Misc 3d 1217(A)] Decided on July 14, 2009 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2009
Supreme Court, Nassau County

The People of the State of New York

against

Craig Glover, Defendant.



675N-09

Norman St. George, J.

The defendant is charged with two counts of violating Penal Law Section 140.25(2), Burglary in the Second Degree as a class C Felony, one count of violating Penal Law Section 265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C Felony, and one count of violating Penal Law Section 165.40, Criminal Possession of Stolen Property in the Fifth Degree as a class A Misdemeanor.

On June 22, 2009, upon stipulation by both parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. The Huntley hearing pertained to oral statements allegedly made by the defendant to the Police which were reduced to writing. The Mapp hearing pertained to various items allegedly recovered from a motel room occupied by the defendant; namely: a handgun, assorted jewelry, a camera, video games and a video game system. The Dunaway hearing pertained to the basis for the stop of the defendant.

The People called three witnesses at the hearing, Police Officer Lisa Cardinale, Police Officer Christopher Boccio and Detective Greg Arena, all of the Nassau County Police Department. The defendant did not call any witnesses. Based on the testimony of the witnesses at the hearing, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT:

This Court finds the testimony of Police Officer Lisa Cardinale, Police Officer Christopher Boccio and Detective Greg Arena to be credible.

On October 18, 2007, Officer Cardinale was on routine motor patrol in the 5th Precinct of Nassau County, State of New York. She was in uniform and operating a marked Nassau County police car. Prior to the going out on patrol, she received information that there had been two [*2]burglary attempts that day in West Hempstead. While on patrol she was specifically canvassing the neighborhoods surrounding the attempted burglaries looking for suspicious people. Officer Cardinale testified that at approximately 1 p.m. she observed two individuals, a male black (whom she identified in Court as the defendant) and a female black, walking on foot in the vicinity of Oakland Avenue and Henry Street. Officer Cardinale testified that the location was approximately a block or two away from one of the burglary attempts. She explained that her attention was drawn to them because they were carrying numerous knapsacks and bags. She testified that she observed that between the two individuals they were carrying approximately half a dozen bags and that one of the bags that the defendant was carrying was a dark colored pillowcase type bag which appeared to contain a laptop computer. Officer Cardinale further testified that the defendant and the female were walking quickly. Officer Cardinale decided to continue to observe them by stationing her patrol car in an adjacent gas station parking lot. She testified that she then followed them in her patrol car as they walked across Hempstead Turnpike.

Officer Cardinale testified that she pulled up to the defendant and the female and asked them where they were coming from. She did not recall who responded, but she recalled that she was told they were coming from the store. Officer Cardinale asked them which store they were coming from. Again, she did not recall who responded, but she recalled that she was told "that store" as the defendant and the female pointed off into the distance in the direction of side streets. She looked in the direction that they pointed and observed no stores in that direction. Officer Cardinale also testified that she knew from her personal knowledge of the area that there were no stores located in the direction indicated by the defendant and the female. Officer Cardinale testified that because she felt that the answers she received were evasive and suspicious, she picked up her police radio to request backup while she continued her conversation. Officer Cardinale testified that immediately upon her picking up her radio the defendant and the female began to walk quickly away from her. Officer Cardinale testified that she called out to the defendant and the female and told them that she was not finished talking to them. Officer Cardinale testified that the defendant and the female then began to run. According to Officer Cardinale, after requesting backup she pursued the defendant and the female. She chased them up to the second floor of the Capri Motor Inn. She testified that she heard a door slam, but did not know where they went. Officer Cardinale testified that she came upon a cleaning woman working at the motel who told her that the individuals ran into room 216. Officer Cardinale testified that at that time Officer Boccio arrived at the scene and they both proceeded to room 216.

Officer Cardinale and Officer Boccio testified that they knocked on the door to room 216 and announced that they were the Police. Officer Cardinale testified that she heard someone in the motel room say either "Hold on" or "Wait a minute." Eventually the door was opened and both the defendant and the female (previously observed by Officer Cardinale) came out of the motel room leaving the door slightly ajar. Officer Cardinale asked where were the bags that they were carrying. Officer Cardinale did not recall who responded, but she was informed that the bags were in the room and that the bags were their bags. Officer Cardinale testified that she asked the defendant and the female if she and Officer Boccio could enter the room and look around. The female replied that they could if the defendant said yes. The defendant nodded in the affirmative. Officer Cardinale testified [*3]that she told the defendant that he must say "yes" or "no" and could not simply nod his head. Officer Cardinale testified that the defendant then said "yes." Officer Boccio also testified that the defendant then said "yes." Officer Cardinale testified that both she and Officer Boccio accompanied the female into the room. She described the room as small with a bed on the left. Officer Boccio testified that the defendant was handcuffedfor officer safety. Officer Cardinale did not recall whether the defendant was handcuffed. Officer Cardinale testified that upon entering the motel room the female said "I will show you what's in the bags." Officer Cardinale testified that the female walked over and opened the bags and pulled out a laptop computer, video games, a play station, and jewelry. Officer Cardinale recalled that Detective Arena arrived soon thereafter and took over the scene.

Detective Arena testified that at approximately 2 p.m. on October 18, 2007, he received a call to respond to room 216 at the Capri Motor Inn regarding two possible burglary suspects. Upon arriving at that location, Detective Arena testified that he asked a male, who he identified in Court as the defendant, if he could enter the motel room and look around. Detective Arena testified that the defendant said "yes." Detective Arena entered the motel room and spoke with Officer Cardinale. Detective Arena testified that he observed jewelry, a camera, a cellular phone, and a laptop computer strewn throughout the motel room. He spoke with the defendant and with a female who he identified as Corin Woods. Detective Arena testified that he asked who the property belonged to and the defendant and Ms. Woods both responded that some was their property and some was not. Detective Arena testified that he asked who owned the cellular phone and both responded that it was not their cellular phone. Detective Arena testified that he picked up the cellular phone and used it to call one of the contact numbers on the cellular phone. Detective Arena testified that he eventually received a return call from a woman who said that she was the owner of the cellular phone. Detective Arena testified that he asked the owner of the cellular phone for her home address so that he could check the condition of her house. Detective Arena indicated that after receiving the home address, he dispatched Police Officer McCaffrey to that location, which was in West Hempstead. Detective Arena testified that Police Officer McCaffrey responded to the address and informed him that the house had been broken into and burglarized. Detective Arena testified that he placed the defendant under arrest and brought him to the 5th Precinct. Detective Arena further searched the motel room and found a loaded handgun under the bed.

Detective Arena recalled that upon arriving at the 5th Precinct the defendant was placed in an interview room. Detective Arena stated that he was present when Detective Louie read the defendant his Miranda Warnings from a rights card. The rights card was marked as a Court exhibit and admitted into evidence without objection. Detective Arena testified that he was present when the defendant stated that he understood his rights and that he was willing to answer questions. Detective Arena observed the defendant sign and date the rights card. Detective Arena asked the defendant what happened and the defendant gave an oral statements regarding the events leading up to his arrest. Detective Arena testified that he reduced the defendant's oral statements to writing, had the defendant read the written statement and then sign the written statement. The defendant's written statement was marked as a Court exhibit and admitted into evidence without objection.

[*4]CONCLUSIONS OF LAW:

REASONABLE SUSPICION FOR THE STOP OF THE DEFENDANT:

The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone.

The Court of Appeals decision in the case of People v. De Bour, 40 NY2d 210 [1976], established a four level test for evaluating street encounters between the Police and individuals. The four levels established by De Bour are:

Level 1: Request for Information-which requires that the Police have an Objective Credible Reason for the request and the interaction;

Level 2: Common Law Right of Inquiry-which requires that the Police have a Founded Suspicion that Criminal Activity is Afoot;

Level 3: Stop and Detain-which requires that the Police have a Reasonable Suspicion that the specific individual is committing or has committed a Felony or Misdemeanor;

Level 4: Arrest-which requires that the Police have Probable Cause that the specific individual is committing or has committed a Felony or Misdemeanor.

A step by step evaluation of the specific facts in each case must be measured against the 4th Amendment to the United States Constitution, the levels set forth in DeBour and more recently, the Court of Appeals decision in People v. Moore, 6 NY3d 496 [2006].

In the case at bar, the defense argues that there was no basis for Officer Cardinale to approach the defendant. Defense counsel contends that the defendant was not acting suspicious and was not committing any crime, he was simply walking down the street carrying knapsacks. Defense counsel further contends that since Officer Cardinale had no description of the person or persons that she was looking for she could not properly stop the defendant. Therefore, defense counsel requests that this Court suppress everything that occurred after the stop of the defendant. The People argue that the stop of the defendant was valid because the defendant appeared to be engaged in suspicious activity; namely, carrying an excessive number of bags in an area where there were previously two attempted burglaries. The People submit that the stop of the defendant was proper. The People also argue that the search of the motel room was consented to by the defendant. Finally, the People contend that the oral statements made by the defendant and reduced to writing were made after Miranda Warnings were given and should therefore not be suppressed.

This Court agrees with defense counsel that there is certainly nothing inherently suspicious about two individuals walking down a street in West Hempstead carrying knapsacks and bags. [*5]Otherwise, every high school and college student living in West Hempstead would be subject to being stopped and searched by the police. However, in this case, the Officer received information concerning burglary attempts occurring earlier that day. Hence, she specifically set out on patrol to canvass the immediate area surrounding the attempted burglaries. Consequently, her observations of two individuals walking quickly with numerous knapsacks and what appeared to be a laptop computer in a pillowcase type bag, were notable and drew her attention. Based on these observations, combined with the fact that there were prior attempted burglaries in the area, this Court finds that Officer Cardinale had not only an objective and credible reason to interact with the defendant and request information, but pursuant to Debour, had a common law right of inquiry. Officer Cardinale approached the defendant and limited her interaction to asking where he was coming from and which store he was coming from. The responses that she received, that they were coming from a store, and the store was located in a direction where there were only side streets, was incongruous with Officer Cardinale's observations and knowledge of the area. Finally, when Officer Cardinale attempted to use her radio and the individuals immediately fled, the combined conduct provided Officer Cardinale with a reasonable suspicion that the individuals had committed a crime. Therefore, Officer Cardinale had a basis to pursue the defendant and stop and detain him.

WARRANTLESS ENTRY INTO THE MOTEL ROOM:

It has long been held that the police may not enter a suspect's home, residence or place where he/she has an expectation of privacy in order to make an arrest unless they have a warrant to arrest that person. Payton v. New York, 445 US 573 [1980]. Although not addressed by either attorney, this Court finds that the defendant has standing to contest the warrantless entry and search of the motel room where he was staying. Although the motel room is not the home or residence of the defendant, Fourth Amendment protection is afforded a guest in a motel room. The defendant, as co-occupant of the motel room, had a legitimate and reasonable expectation of privacy therein and, therefore, he has standing to challenge the entry and search of same. People v. Ali, 131 AD2d 857 [2d Dept 1987].

Based on the testimony of both Officer Cardinale and Officer Boccio, they did not immediately enter into the motel room. Neither did they forcibly attempt to enter the motel room. Both Officer Cardinale and Officer Boccio testified that they knocked on the motel room door, identified themselves as Police Officers, and the defendant and the female eventually came out of the motel room. Both Officer Cardinale and Officer Boccio testified that the defendant and the female voluntarily agreed to allow them to enter the motel room to look around. Hence, the police entry into the motel room was permissible based on the defendant's consent. People v. Kalaj, 247 AD2d 633 [2d Dept 1998]. The fact that the defendant at first only nodded his consent and then eventually said "yes" is of no moment. Furthermore, it is clear that a defendant's consent can be established by conduct as well as words. People v. Gonzalez, 222 AD2d 453 [2d Dept 1995]; People v Smith, 239 AD2d 219 [1st Dept 1997]. [*6]

Similarly, Detective Arena testified that when he arrived at the motel room, he requested and received the consent of the defendant to enter the room and look around. The testimony of the Officers and the Detective that there was consent to enter the motel room was not refuted during the hearing. Based on the testimony of Officer Cardinale and Officer Boccio, as well as the testimony of Detective Arena, this Court finds that the defendant voluntarily consented to the Police entry into the motel room to investigate.

WARRANTLESS SEARCH AND SEIZURE OF EVIDENCE:

Officer Cardinale and Officer Boccio testified that they did not search the motel room or the knapsacks or bags. Officer Cardinale testified that, upon entering the motel room, the female opened the knapsacks and bags and displayed the items. Neither Officer Cardinale nor Officer Boccio requested that the female open or empty the knapsacks or the bags. This Court finds that the spontaneous removal by the female of the items contained in the knapsacks and bags did not constitute a search by the police.

Detective Arena testified that one of the items which he observed was a cellular phone. Detective Arena testified that both the defendant and female denied ownership of the cellular phone. Detective Arena then used the cellular phone to determine the owner of the phone. The Court finds that the use of the cellular phone by Detective Arena to determineits owner was proper. It has long been held that when a defendant denies ownership of an item, the item is abandoned and the defendant has no expectation of privacy regarding its contents. Therefore, such property is not subject to the constitutional protections against unreasonable search and seizure. People v. D'Ambrosio, 28 AD2d 1130 [2d Dept 1967]; People v. Castro, 162 AD2d 425 [1st Dept 1990].

Detective Arena testified that he requested and received the consent of the defendant to search the motel room. The testimony of Detective Arena regarding the defendant giving him consent to search the motel room was uncontroverted during the hearing. This Court finds that Detective Arena's search under the bed was permissible based on the consent of the defendant to search the room. People v. Jean, 13 AD3d 466 [2d Dept 2004].

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

Whether the arrest of the defendant is lawful rests upon whether the Police first had reasonable suspicion to stop him and next whether they had probable cause to arrest him. As indicated above, this Court finds that there was reasonable suspicion for the stop of the defendant. This Court must next determine when and where the defendant was arrested. Although Officer Boccio testified that he believed that the defendant was placed in handcuffs upon the entry of the police officers into the motel room, he indicated that the purpose of same was for officer safety. This Court finds that when the defendant was initially handcuffed at the motel he was not under arrest. Further, in light of the circumstances presented, Officer Boccio was justified in using handcuffs to [*7]protect the safety of the Officers. People v. Allen, 73 NY2d 378 [1989]; People v. Garcia, 284 AD2d 479 [2d Dept 2001].

Based on the testimony of Detective Arena, the defendant was arrested shortly after Detective Arena spoke with the owner of the cellular phone and received the information that her home was broken into and burglarized. This Court finds that Detective Arena had probable cause to arrest the defendant. Probable cause was established by the information which Detective Arena received from Officer Cardinale, Officer Boccio, and Officer McCaffrey, together with his observations of the items in the motel room, and the information which he received from the cellular phone owner.

STATEMENTS BY THE DEFENDANT:

The defendant made various oral statements to Detective Arena and Detective Louie which were reduced to writing. At the time the defendant made the statements, he was in custody and had already been placed under arrest. The questions asked of the defendant were interrogatory in nature. Detective Arena testified that prior to making the statements, the defendant was read his Miranda warnings. The People are required to prove that the defendant knowingly, intelligently and voluntarily waived his Miranda rights prior to making the statement. Miranda v. Arizona, 384 US 436 [1966]. Based on the testimony of Detective Arena, this Court finds that the warnings given to the defendant properly advised him of his rights and the defendant knowingly, intelligently and voluntarily waived his right to remain silent. People v. Huntley, 15 NY2d 72 [1965]. Therefore, defendant's motion to suppress the written statement is denied.

For the reasons set forth above, the defendant's motions are denied in their entirety. This constitutes the decision and Order of the court.

Dated: July 14, 2009

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice