People v Terracciano

[*1] People v Terracciano 2009 NY Slip Op 51714(U) [24 Misc 3d 1233(A)] Decided on August 7, 2009 Supreme Court, New York County Sonberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2009
Supreme Court, New York County

The People of the State of New York

against

Chris Terracciano, Defendant.



01853-2009



For the People:

HON. ROBERT M. MORGENTHAU

District Attorney, New York County

One Hogan Place

New York, NY 10013

(212) 335-4230

Edgar Fankbonner, Esq. Of Counsel

For the Defendant:

LAWRENCE R. DIGIANSANTE, ESQ.

984 Morris Park Avenue

Bronx, NY 10462

(718) 822-0707

Michael R. Sonberg, J.

Defendant has been indicted and charged with two counts of criminal possession of a controlled substance in the third degree, in violation of Penal Law §§ 220.16 (1) and 220.16 (12), respectively. He contends that the police did not have probable cause to place him under arrest and to have been aggrieved by an unlawful search and seizure, and has moved to suppress statements made by him as well as tangible evidence seized from him at the time of his arrest. A combined pre-trial Dunaway/Mapp/Huntley suppression hearing (granted by a court of coordinate jurisdiction) was conducted before this court on July 1 and 2, 2009. The People called two witnesses, New York City Police Detectives Andres Mahecha and Joseph King. Defendant presented no witnesses.

FINDINGS OF FACT

The court finds the testimony of both witnesses to have been credible. On June 25, 2008, [*2]at approximately 6:15 P.M., both Dets. Mahecha[FN1] and King[FN2] were on duty, assigned to Manhattan South Narcotics, as part of a narcotics field team. Both were in plain clothes, Det. Mahecha on foot and Det. King in an unmarked police vehicle. A short time earlier, Det. Mahecha was walking westbound on the south side of Christopher Street, between Washington and West Streets. He was acting as a "ghost" undercover officer and was walking towards an undercover officer who was in the Hudson River Park, near one of the piers. At that time, Det. Machecha saw defendant speaking on a cell phone while standing on the sidewalk next to a parked BMW automobile, accompanied by another man. Detective Machecha was able to overhear defendant say to someone, "Hurry up, hurry up." Detective Machecha overheard about 10 to 15 seconds of defendant's conversation. He also observed that defendant was looking in different directions. There was foot traffic on both sides of Christopher Street, with heavier foot traffic on the north side of the street; this location was across Christopher Street from a neighborhood bar.

After passing defendant, Det. Mahecha used his point-to-point radio to contact Det. King, who was assigned to the chase car. Detective Machecha described defendant, gave his location and asked Det. King to put defendant under observation for a few minutes. He did not tell Det. King that he had observed defendant to be on his cell phone or the substance of what he had overheard, nor did he tell Det. King why he wanted Det. King to initiate surveillance.

After making the transmission to Det. King, Det. Machecha continued walking west, crossed West Street and entered the Hudson River Park, when he received a transmission from his sergeant directing him to stop the undercover officer from continuing to interact with people, so that the field team could devote its attention to defendant. Two to three minutes after crossing West Street, Det. Machecha received a radio transmission from Det. King. Detective King told Det. Machecha, "Grab him, grab him," and added, "He's good to go." Detective Machecha took those words to mean that he should stop defendant and place him under arrest; he crossed back across West Street and walked a few feet towards defendant, who was walking in Det. Mahecha's direction, and placed defendant under arrest, handcuffing him without any inquiry.

In a search incident to that arrest, Det. Machecha recovered from defendant, among other things, 140 blue pills of Oxycodone in a clear, zip lock bag and $1,315 in US currency. Following the search, while Det. Machecha and four other officers were present at the arrest location, Det. Machecha asked defendant pedigree information; during the course of obtaining that information, defendant asked, "Did you get the other guy, the one who sold me the pills?"

Following the receipt of Det. Machecha's request that he observe defendant, Det. King, accompanied by Det. Bombolino, parked their vehicle on the north side of Christopher Street, [*3]west of Washington Street, closer to Washington Street than to West Street, which he described as a "drug prone location."[FN3] He immediately spotted defendant and the other man,[FN4] standing next to a BMW on the opposite side of Christopher Street on his cell phone, further west down the block. Detective King testified that defendant "did not fit the area" because he "seemed to be in a hurry, looking to move very fast, but standing there." Two to four minutes later, Det. King observed a red Ford Explorer heading eastbound on Christopher Street; the driver's side window was open and Det. King could see that the driver was a male Hispanic, later identified to be George Perez. The Explorer stopped near defendant, defendant entered the vehicle and the vehicle drove off, very slowly, then stopped a few car lengths east of where defendant had entered, still west of Washington Street and defendant exited the Explorer.

Defendant was inside of the Explorer for no more than one to one and one-half minutes. From approximately 45 feet away, Det. King saw the driver look at defendant, both men look down and there was some "shoulder movement" on the part of the driver. Detective King could not observe their hands or what, if anything, transpired while they were in the vehicle together. However, based upon his training and experience, he believed he had witnessed a "delivery service" of narcotics and radioed Det. Mahecha that the latter should stop and arrest defendant.

Detective King described the "telltale signs" of a delivery service involving a vehicle in Manhattan (as opposed to a transaction on the street), to be someone standing outside for no apparent reason, on a cellular phone, and then entering a vehicle which goes a short distance or squares a block, after which the passenger exits. He said that delivery service transactions had increased in the areas to which he is assigned — the West Village and Chelsea — and that, in the first six months of 2009, approximately 20 to 25 of the 40 to 55 arrests he had made were in delivery service situations; he was unable to quantify those numbers for the same period in 2008, nor did he identify this location as a place in which he had previously observed delivery service transactions.

CONCLUSIONS OF LAW[FN5]

The objective actions of Detective Machecha in stopping defendant and recovering the contraband from his person amounted to a search and seizure within the meaning of the Fourth Amendment. For this warrantless arrest to be lawful under the Fourth Amendment, defendant's arrest must be supported by probable cause. United States v Valentine, 539 F3d 88 (2d Cir 2008) citing Beck v Ohio, 379 US 89 (1964); Maryland v Pringle, 540 US 366 (2003);United States v Fisher, 702 F2d 372 (2d Cir 1983); Dunaway v New York, 442 US 200,208 (1979); Wong Sun v United States, 371 US 471, 479 (1963). While the burden of demonstrating the illegality of a [*4]search and seizure is on defendant, the People have the burden of demonstrating the legality of the police conduct in the first instance. See People v Berrios, 28 NY2d 361 (1971).Defendant argues that because he had not committed any obvious offense there was no probable cause to arrest him, and thus the physical evidence recovered by the police was the fruit of that illegal arrest and must be suppressed. The People argue that the combination of elements and the series of events here established probable cause for a lawful arrest, in that defendant's actions and the location in which they took place, when viewed through the eyes of an experienced police officer, gave rise to probable cause for defendant's arrest.

A police officer may arrest a person for a crime "when he has reasonable cause[FN6] to believe that such person has committed such crime, whether in his presence or otherwise." CPL§ 140.10 (1) (b). The test for probable cause to arrest requires a belief, prudently arrived at by the arresting officer, that a crime had been committed by this defendant. People v Shulman, 6 NY3d 1, 25-26 (2005), cert denied 547 US 1043 (2006); People v Yancy, 86 NY2d 239 (1995); People v Maldonado, 86 NY2d 631 (1995); People v Hicks, 68 NY2d 234 (1986); People v Bigelow, 66 NY2d 417 (1985); People v Cantor, 36 NY2d 106 (1975); People v Henry, 361 US 98 (1959). "Probable cause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction . . . but merely information which would lend a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed . . . ." People v McRay, 51 NY2d 594, 601 (1980).

While probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity," mere suspicion or a hunch, even one that is the product of years of experience is not enough. See Illinois v Gates, 462 US 213, 244 n13 (1983); see also Wong Sun v United States, 371 US 471, 479 (1963) ("It is basic that an arrest . . . must stand upon firmer ground that mere suspicion . . . ."). Probable cause requires "more than rumor, suspicion, or even a strong reason to suspect." United States v Fisher, 702 F2d 372, 375 (2d Cir 1983). In determining whether probable cause exists to arrest a suspect, "[t]he experience of a police officer is a factor to be considered . . . but the relevance of the suspect's conduct should be sufficiently articulable that its import can be understood by the average reasonably prudent person." United States v Fisher, 702 F2d at 378. In this regard, the subjective beliefs of the arresting officers are not controlling on the issue of whether probable cause exists for an arrest. Rather, it is for the court to make this determination based upon a review of all the relevant objective information known to the officers involved and the reasonable inferences to be drawn from the totality of the circumstances. People v Banders, 204 AD2d 340 (2d Dept) lv denied 83 NY2d 1002 (1994); People v Lynch, 178 AD2d 779 (3d Dept 1991), lv denied, 79 NY2d 949 (1992); People v Chapman, 103 AD2d 494 (2d Dept 1984).

In evaluating the actions of the police officers and viewing all of the facts as a whole, together and in context, as well as the rational inferences to be drawn thereform, I conclude that the police lacked probable cause to arrest defendant. First, when Det. Machecha initially observed defendant, he had done nothing to attract police attention, other than standing on the street, talking on his cell phone, saying "Hurry up, hurry up," and looking in different directions when Det. Machecha walked by. Detective Mechecha had never met defendant before and had no [*5]information from which to conclude that defendant had previously been involved in any type of illegal activity. While there can be not doubt that Det. Machecha was entitled to ask a fellow officer to place defendant under surveillance, there was nothing in defendant's conduct up to that point suggestive of any wrongdoing.

The question then is whether Det. King's observations provided an objective basis for believing that defendant had engaged in a narcotics transaction in the vehicle with the driver. In this case, there is no dispute as to the observations of Det. King. Detective King did not overhear the telephone conversation, whether innocent or suspicious, and did not see what, if anything, was exchanged between defendant and Mr. Perez; he observed neither currency, nor a telltale sign of drug activity such as a glassine envelope, tinfoil packet or vial, nor a package of any type or any other describable object that might provide a basis for believing that a criminal transaction had taken place in the vehicle. The People's argument seems to be that, because of the officer's training and experience of how drug transactions occur in this drug-prone location, the observations of a brief meeting between two individuals in a vehicle, following a telephone conversation on the street, with "shoulder movements," created reasonable cause to believe that a drug transaction had taken place.

The Court of Appeals, in People v McRay, 51 NY2d 594 (1980), identified three factors relevant in determining probable cause in drug cases: (1) the telltale sign or hallmark of illicit drug activity, i.e., the container being exchanged; (2) a drug-prone area; and (3) the experience of the arresting officer in drug arrests. In the years since McRay was decided, the Court of Appeals has adopted what is, essentially, a totality of the circumstances approach in determining probable cause in drug cases. See People v Jones, 90 NY2d 835 (1997). In Jones, the Court held that while the passing of a telltale sign of drug packaging strongly suggests that an illicit drug transaction has occurred, the existence of such a telltale sign is not an indispensable prerequisite to probable cause and that in a probable cause analysis of alleged drug transaction on the street, the emphasis should not be narrowly focused on whether the police observed a recognizable drug package or any other single factor, but on an evaluation of the totality of the circumstances. See also People v Watts, 309 AD2d 1256 (4th Dept 2003), lv denied 1 NY3d 582 (2003); People v Graham,211 AD2d 55 (1st Dept 1995), lv denied 86 NY2d 795 (1995).

Detective King testified that he believed that a delivery service drug transaction had occurred based the following factors: he observed defendant standing outside for no apparent reason,[FN7] engaged in a telephone call in a drug-prone location, after which defendant entered a vehicle, the vehicle drove very slowly, defendant was in the vehicle for no more than one and one-half minutes, the driver of the vehicle moved his shoulders, and thereafter defendant exited the vehicle a few car lengths east of where he had entered. Based on this series of events, Det. King concluded that defendant's conduct was consistent with a delivery service drug sale. Detective King's interpretation of defendant's actions seems to have largely been informed by his experience in recognizing drug transactions and his prior arrests in delivery service situations.

Notwithstanding Det. King's testimony that delivery service transactions had increased in the area to which he is assigned (the West Village and Chelsea), and that in the first six months [*6]of 2009, approximately 20 to 25 of the 40 to 55 arrests he made were in delivery service situations, there was no evidence that Det. King had previously made any delivery service drug arrests in this particular location at any time, other than on this occasion. Furthermore, there was no evidence that the police had received any reports of delivery service activity in this particular area or that they were targeting this specific area or defendant for any reason.[FN8] Although Det. King's awareness of past delivery service drug sales in the area is an important factor in the probable cause analysis, this court notes the absence of any evidence in the record that these transactions occurred at any time prior to defendant's arrest. While it is true that the reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely [see United States v Brignoni-Ponce, 422 US 87 (1975)], this is only one factor to be considered in the totality of the circumstances. See Brown v Texas, 443 US 47 (1979). [This factor alone would create a "high crime area" exception to the protections extended by the Fourth and Fourteenth Amendments].

There is no decisional authority in New York which supports the People's assertion that Det. King's observations constituted probable cause for defendant's arrest. That is not to say, however, that delivery service transactions are unknown to trial and appellate courts in New York; in each of those cases, however, there were observations of packages being delivered. In People v Butler, 27 AD3d 365 (1st Dept 2006), lv dismissed 6 NY3d 893 (2006), the Appellate Division reversed the trial court's suppression, criticizing the trial court's "totally discount[ing]

. . . the possibility of delivery service . . . on the street." 27 AD3d at 368. In Butler, officers observed a man on the street, peering into cars and at pedestrians; when a car parked, the defendant exited and approached the man, who removed currency from his pocket, counted it and handed it to the defendant, who in turn removed a glassine bag containing a white substance from his pants pocket, handing it to the man. In People v Brown, 304 AD2d 321 (1st Dept 2003), lv denied 100 NY2d 536 (2003), officers observed the defendant speak with the codefendant, saw the codefendant leave and then return with a package and thereafter exchange the package for "a wad of cash." And in People v Marin, 154 AD2d 484 (2d Dept 1989) and People v Diaz, 141 AD2d 832 (2d Dept 1988), lv denied 72 NY2d 1044 (1988), an undercover paid for drugs, one of the defendants left, made a telephone call at a gas station (in pre-cell phone days), and in ten minutes, a van containing other defendants appeared at the gas station; the seller went to meet the van and carried a bag from there to the undercover, while the van traveled slowly down the street, following the seller to the undercover.

Here, examining the totality of the circumstances, I find that the facts known to Det. King, prior to defendant's arrest, while sufficient to arouse interest from the perspective of an experienced police officer, provided no objective basis to conclude that defendant was engaged in a narcotics transaction. A reasonably prudent person could equally conclude that defendant had left an item in the vehicle or with its driver and had to retrieve the item or that defendant was engaged in some other innocent activity. Conduct which is susceptible of innocent or ambiguous meaning "does not provide probable cause for arrest." United States v Fisher, 702 F2d at 378 (2d [*7]Cir 1983). Detective King observed neither evasive action, furtive movement, weapons, drug paraphernalia, exchange of anything, nor touching of hands. See also United States v Ceballos, 654 F2d 177 (2d Cir 1981) (no probable cause to arrest man who left building of known narcotics trafficker carrying brown paper bag of type commonly used to contain drugs and who fit the "profile" of persons who bought drugs from the dealer). Moreover, the encounter took place in the early evening, with pedestrian and vehicular traffic in the area, and not in a deserted location. The duration of the time spent in the vehicle is no proof of drug activity. At best, Det. King's observation permitted him to make inquiry of defendant based on a founded suspicion that criminal activity was afoot. See People v White, 171 AD2d 607 (1st Dept 1991) lv denied 78 NY2d 976 (1991) (the police officer's observation of what seemed to be an exchange between defendant and an unknown person in an area known for its narcotics activity provided the officer with sufficient predicate for the minimal invasion of asking defendant what he was doing in the area).

Considering the totality of the circumstances and the series of events, the record before the court does not establish probable cause for a lawful arrest. In the final analysis, Det. King's hunch that defendant had purchased drugs was, despite his prior experience, just that — a hunch. See Brown v Texas, 443 US 47 (1979) (an officer's experience does not require a court to accept his suspicions as reasonable or that the officer's perceptions are justified by the objective facts). As there was no probable cause for defendant's arrest, all of the evidence acquired as a result of the unlawful conduct must be suppressed. Wong Sun v United States, 371 US 471 (1963); People v Cantor, 36 NY2d at 111.

Accordingly, defendant's motion to suppress physical evidence and his statement is granted in all respects.

This constitutes the decision and order of the court.

Dated: New York, New York

August 7, 2009

_________________________________

Michael R. Sonberg, J.S.C. Footnotes

Footnote 1:At the time of the hearing, Detective Mahecha, an eleven year veteran of the NYPD, had made over 300 narcotics arrests and participated in over 500 narcotics-related arrests. He was an undercover narcotics officer for four years and received field training in the identification of narcotics substances, their packaging, prices and street names.

Footnote 2:At the time of the hearing, Detective King was a twelve and one-half year veteran of the NYPD, had made over 540 arrests, approximately 500 of which were related to narcotics. He received training in narcotics transactions, identifying drugs and the different roles of drug dealers. He had worked as an undercover officer and as a "ghost" and witnessed hundreds of drug transactions.

Footnote 3:The record does not contain any elucidation of the characterization of this location as "drug-prone." There was no testimony regarding other arrests for drug transactions at this particular location, whether street-based or vehicle-based. It appears to apply to the entire West Village.

Footnote 4:Neither of the witnesses ever explained whether this man was ever stopped or identified, or whether this man was ever thought by the police to have been associated with or acting together with defendant. This man remains unidentified.

Footnote 5:The People were invited to submit a post-hearing memorandum of law; they declined to do so.

Footnote 6:Reasonable cause means probable cause. See People v Maldonado, 86 NY2d 631 (1995).

Footnote 7:It is difficult to imagine how an officer could ever objectively determine the reason for a person's presence on a sidewalk, other than at a bus stop or attempting to hail a taxi.

Footnote 8:Although there was no testimony explicitly characterizing the assignment of this narcotics field team on this date, it seems apparent, given the presence of an undercover officer and a ghost, that this was a "buy and bust"operation, rather than one specifically assigned to make observations of drug transactions.