People v Ortiz

[*1] People v Ortiz 2009 NY Slip Op 52416(U) [25 Misc 3d 1234(A)] Decided on November 30, 2009 Supreme Court, Bronx County Torres, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2009
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Jose Ortiz a/k/a Rafael Rosado, Defendant.



3456/08



Appearances of Counsel:

Assistant District Attorneys, Charlayne White;

Defense Counsel, Jamal Johnson.

Analisa Torres, J.

Defendant, Jose Ortiz a/k/a Rafael Rosado, is charged with Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06[5]), and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03).

Defendant moves for an order suppressing drugs recovered from his vehicle and money recovered from his person, on the ground that they are the fruits of an lawful search and arrest.

On June 16 and 17, 2009, I conducted a Mapp/Dunaway hearing. The parties' motion papers were submitted on October 14, 2009. Following are my findings of fact and conclusions of law.

Detective Joaquin Camacho testified on behalf of the People. Defendant called Cheyenne Rodriguez. Defendant was driving Rodriguez's car on the night of the incident. Rodriguez's testimony regarding the degree of tint on the vehicle's windshield contradicted Camacho's claim that it was transparent. I credit Camacho's testimony.

FACTS

Camacho is an eleven-year veteran of the New York City Police Department and has served as a detective in the Bronx Narcotics Unit for four years. As a detective, he has made approximately 200 drug-related arrests.

On May 24, 2008, at 9:40 p.m., Camacho was working as the arresting officer in a "buy and bust operation" in the area of 1430 Stadium Street, in the Bronx. Camacho and his partner, Lieutenant Von Kessel, were riding in an unmarked police van, investigating complaints of narcotics sales in the neighborhood. [*2]Camacho was seated in the front passenger seat and his partner was driving.

Traveling on Stadium Street, a narrow two-way residential road, Camacho noticed that a blue Chevrolet Caprice with darkly tinted windows was circling the block, slowing down in the same spot, stopping abruptly and hindering the flow of traffic. For about five to ten minutes, the officers followed behind the Chevy from a distance of one car length.

On defendant's second or third time around the block, Camacho saw another man, Ralph Cione, exit 1430 Stadium Avenue and wave to defendant from the sidewalk. Defendant stopped his automobile, Cione leaned into the front passenger side window and they talked briefly. Defendant then parked the vehicle next to the curb and Cione entered the front passenger side seat.

As the police van moved slowly past defendant's car, in the same direction, Camacho looked through the front windshield from less than a foot away. He saw defendant and Cione leaning forward and examining a small black item in defendant's hand. Defendant was fidgeting with the object in such a way that led Camacho to believe, based on his training and experience, that defendant was either reloading or ejecting a bullet from a firearm.

After watching the men for a minute, Camacho directed that his partner stop the police vehicle. His partner angled the van in front of the Chevy, obstructing its pathway. Camacho exited with his gun drawn and stood in front of defendant's car. Camacho identified himself and ordered that the occupants show their hands. Cione complied immediately. Defendant, however, glanced up momentarily and then reached down to the front center console area underneath the dashboard by the radio control. After Camacho's third command to show his hands, defendant complied.

Defendant and Cione were removed from the vehicle and frisked for weapons. No weapon or contraband was recovered. The officers escorted the two men to the rear of the Chevy. They were not handcuffed.

Camacho returned to defendant's automobile and climbed into the driver's seat. He looked and felt around the front center console underneath the dashboard and the underside of the front panel, areas he had seen defendant reaching toward minutes earlier. Camacho recovered a little, black magnetic key-storage case — - the object that Camacho had mistakenly believed was the handle of a gun. A handle of a small firearm, a .9 or .22 millimeter gun, measures between 2.5 to 3 inches. The key holder measured 1.75 by 3.25 inches.

Upon recovering the key box, Camacho concluded that although it was not empty, it was too little to contain a handgun. He thought it could hold bullets, razors or switch blades. Camacho [*3]explained, "I didn't know exactly what it contained. I just believed it to contain something that might either cause harm or some danger to myself or fellow officers". Camacho opened the case and discovered twist bags of crack cocaine.

Defendant and Cione were handcuffed and placed under arrest. Camacho searched the car for additional contraband. The police searched defendant's person and recovered $749.

LAWPolice officers may approach a parked car for an objective, credible reason. People v. Ocasio, 85 NY2d 982, 984 (1995) (citing People v. Harrison, 57 NY2d 470, 475-476 [1982]). They may take the protective measure of approaching with guns drawn, if they believe the occupants might possess a firearm. People v. Livigni, 88 AD2d 386, 390 (2d Dept 1982), affd 58 NY2d 894 (1983). The police may restrain the occupants of a parked vehicle based on "some articulable facts, which initially or during the course of the encounter, established reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers". Harrison, 57 NY2d at 476 (citation omitted). "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand". People v. Cantor, 36 NY2d 106, 112-13 (1975). The knowledge of the suspicious act must be more than subjective and not based on a "[m]ere hunch' or gut reaction'". People v. Sobotker, 43 NY2d 559, 564 (1978).

The police may direct the occupants to exit an automobile if the officers have "reasonable suspicion that [they] had stumbled [onto] criminal behavior". People v. Thomas, 275 AD2d 276, 278-279 (1st Dept 2000), lv denied 95 NY2d 939 (2000). Once outside the vehicle, the occupants may be frisked for weapons if the police have "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat of safety". People v. Batista, 88 NY2d 650, 654 (1996).

"A police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm". People v. Torres, 74 NY2d 224, 226 (1989); People v. Carvey, 89 NY2d 707, 710 (1997). Absent probable cause, the police may not invade the interior of a stopped car once the suspects have been removed and frisked without incident, because any immediate threat to the safety of the officers has been eliminated. People v. Mundo, 99 NY2d 55, 58 (2002). A search of the interior of an automobile cannot be based on the theory that harm might occur after the investigation is completed and the occupants are allowed to return to their [*4]vehicle. Torres, 74 NY2d at 231, n. 4. There may be circumstances, however, where, after a lawful stop, the police obtain information that leads "to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers' safety sufficient to justify a further intrusion, notwithstanding the suspect's inability to gain immediate access to that weapon". Mundo, 99 NY2d at 58 (quoting Torres, 74 NY2d at 231, n. 4).

The caselaw in this area has evolved over the last 20 years.In People v. Torres, 74 NY2d 224 (1989), two detectives, relying upon an anonymous telephone tip concerning the location of a homicide suspect who was allegedly carrying a gun in a shoulder bag, approached a black Eldorado, identified themselves and ordered that the occupants exit the car. While the suspect was being frisked, the detective who had just patted down the companion, reached into the automobile and removed the shoulder bag from the seat.Sensing the heaviness of the bag and feeling the outline of a gun, the detective opened the bag and discovered a firearm. Id. at 226.

The Court suppressed the gun, reasoning that after the occupants had exited the vehicle and been frisked without incident, the immediate threat to the detectives' safety had been allayed and could no longer justify a more intrusive search involving the removal of personal property from the car. Torres, 74 NY2d at 227. It held that although the detectives may have possessed a reasonable basis for suspecting the gun's presence, the facts known to the police - - the anonymous telephone tip and their on-the-scene observations - - did not support the conclusion that there was "actual and specific danger to the officers' safety". Id. at 231, n.4. The Court added that once the occupants had been frisked without incident, the armed detectives should have employed a far less intrusive means to alleviate any residual fear, such as questioning the suspects or asking them to step away from the automobile. Id. at 230; see People v. Gonzalez, 212 AD2d 410 (1st Dept 1995); People v. Snyder, 178 AD2d 757 (3d Dept 1991), affd 80 NY2d 815 (1992).

The Court of Appeals reexamined the legality of a police search of the interior of a vehicle in People v. Carvey and clarified that an actual and specific danger is present where there is a substantial likelihood of a weapon in the car. 89 NY2d 707, 711 (1997). In that case, officers stopped an automobile for a traffic infraction and noticed defendant, a rear-seat passenger, bend down and place something under the seat. The defendant was also wearing a bulletproof vest underneath his sweatshirt. All four occupants were ordered out of the vehicle and patted down without incident, after which an officer reached under the rear passenger seat of the car and recovered a gun. Id. at 709. Denying suppression of the gun, [*5]the Carvey Court held that defendant's use of a bulletproof vest, "an article that uniquely evidenced his preparation to engage in gun battles as well as his enhanced ability to safely use a deadly weapon", coupled with his suspicious behavior of bending down and hiding something, reasonably led the officer to suspect that "a weapon located within the vehicle present[ed] an actual and specific danger" to their safety, even though the occupants were outside of the automobile. Id. at 712 (citation omitted).

After Carvey, the Court of Appeals, in People v. Mundo, 99 NY2d 55 (2002), relaxed the criteria for measuring whether there is a substantial likelihood of a weapon in a vehicle. In Mundo, the Court found that a wild car chase and furtive movements by the occupants constituted a sufficient factual foundation to support the officers' reasonable conclusion that " a weapon located within the vehicle present[ed] an actual and specific danger' to their safety". 99 NY at 59 (citing Carvey, 89 NY2d at 712 [quoting Torres, 74 NY2d at 231, n.4]). In Mundo, the police attempted to stop an automobile for a traffic infraction, the car initiated a cat-and-mouse pursuit by accelerating and decelerating, nearly striking a pedestrian in the process. During the chase, the defendant, who was seated in the back seat, turned around, looked at the officers and moved in a way that appeared as if he were hiding something. After the police stopped the automobile, removed the occupants and frisked them, one officer searched the area of the vehicle where the defendant had been seated. The officer pulled down the armrest located at the backseat center, revealing a panel that led to the trunk. Smelling a strong odor of a chemical compound used to "cut" or "cook" cocaine, the officer opened the trunk and recovered almost a kilogram of cocaine. Finding the search lawful, the Court affirmed the lower courts' denial of Mundo's motion to suppress the drugs. Id. at 57.

After Mundo, the First Department, Appellate Division, articulated that the "totality of the circumstances" should be considered, when determining the legitimacy of a police claim that a car contained a weapon that would endanger the officers' safety. See People v. Fludd, 20 AD3d 351 (1st Dept 2005); People v. Anderson, 17 AD3d 166 (1st Dept 2005).

DISCUSSIONA seizure occurred when the police van blocked defendant's parked automobile. People v. Solano, 46 AD3d 1223, 1225 (3rd Dept 2007), lv denied 10 NY3d 817 (2008). The seizure was justified, because Camacho's belief that defendant was fidgeting with the handle of a firearm gave rise to reasonable suspicion that criminality was afoot. Harrison, 57 NY2d at 476. The officer's approaching defendant's vehicle with his gun drawn (Livigni, 88 AD2d at 390), the directive that defendant show his hands (People v. Edwards, 52 AD3d 1266, 1267 [4th Dept 2008], lv [*6]denied 11 NY3d 736 [2008]), the order directing defendant out of the car (Thomas, 275 AD2d at 278-279), and the attendant pat down for weapons (Batista, 88 NY2d at 654), were proper.

The totality of the circumstances - - Camacho's belief that defendant was handling a gun, defendant's failure to comply with Camacho's directive to show his hands, defendant's furtive movements around the front center console area giving the impression that defendant was attempting to hide something, and Camacho's awareness of complaints concerning narcotics sales in the neighborhood (People v. Jones, 39 AD3d 1169 [4th Dept 2007]) - - provided a reasonable basis for Camacho's fear that the vehicle contained a weapon that might endanger the officers' safety. The search of the Chevy's front center console area was, therefore, justified. See Fludd, 20 AD3d 351; Anderson, 17 AD3d 166.

The pivotal issue in this case is whether, after the frisk and limited search produced no contraband, Camacho exceeded the permissible scope of intrusion by opening the magnetic key holder he had discovered under the interior front panel of defendant's vehicle.

Camacho's explanation that he opened the case because, unsure of what was inside, he still feared that it could cause danger to himself or his fellow officer is the kind of theoretical justification theCourt of Appeals explicitly rejected in Torres. See, 74 NY2d at 231, n. 4. Once Camacho realized that what he thought was the handle of a firearm was nothing more than a magnetic key box, the officer's fear had been allayed and a more probing search was not justified. By opening the case, Camacho exceeded his authority and violated defendant's Fourth Amendment protection against unreasonable searches and seizures. See People v. DeLaCruz, 242 AD2d 410, 411 (1st Dept 1997); People v. Knight, 138 AD2d 294, 297-98 (1st Dept 1988), appeal dismissed 73 NY2d 992 (1989).

The search of the key-storage case, the recovery of the drugs inside, the ensuing arrest and the recovery of $749 from defendant's person were unlawful.

CONCLUSION

Accordingly, defendant's motion to suppress the drugs and U.S. currency is granted.

This constitutes the decision and order of the court.

Dated:

J.S.C.