People v Hall

[*1] People v Hall 2016 NY Slip Op 51867(U) Decided on November 30, 2016 County Court, Monroe County Ciaccio, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2016
County Court, Monroe County

The People of the State of New York

against

Roosevelt Hall, Defendant.



2016-0318



For the People:

ROMAN A. MISULA, ESQ.

Assistant District Attorney

SANDRA DOORLEY, ESQ.

Monroe County District Attorney

47 S. Fitzhugh Street

Rochester, New York 14614

For the Defendant:

SCOTT A. GARRETSON, ESQ.

19 West Main Street, Suite 1018

Rochester, New York 14614
Christopher S. Ciaccio, J.

Defendant is charged by indictment with one count of Criminal Possession or Sale of Unstamped Cigarettes (as a felony because of a prior conviction for the same offense), in violation of New York Tax Law section 814(b). Defendant moved by motion dated July 11, 2016 to suppress statements made to law enforcement, and to suppress the cigarettes found in a bag he had been holding at the time of his arrest.

A combined Huntley/Mapp hearing was held on October 26, 2016. The People called one witness, Rochester Police Department Officer Leonard Carfley. Defense called no witnesses.

What follows are the Court's Findings of Fact based on the evidence it deems credible and its Conclusions of Law.

FINDINGS OF FACT

On 9/28/15 at 11:48 a.m. Officer Carfley set up an observation post in a vacant room of an apartment building overlooking the intersection of St. Paul and Pleasant Street in downtown Rochester, looking specifically for possible street sales of unstamped cigarettes.

In his career he had investigated and made over 50 arrests for the illegal sale of untaxed or unstamped cigarettes, all of which had occurred in the downtown Rochester area. He was looking for persons walking along the street and appearing to offer something for sale to passers-by and occupants of vehicles, which he knew, based on his experience, was the manner in which untaxed cigarettes were commonly sold.

Almost immediately upon entering the vacant apartment, before he had time to set up with binoculars or viewing equipment, Carfley looked out over Pleasant Street and spotted defendant Roosevelt Hall. He knew Hall from past encounters and that Hall had on many occasions been engaged in the sale of unstamped or untaxed cigarettes. He saw Hall receive several currency bills of unknown denominations from another person, then reach into a white plastic bag he was carrying and hand the person a bright green small box. Carfley was about 150 feet away from where the exchange took place; his view was unobstructed. He believed the green box was the distinctive and characteristic packaging of unstamped menthol cigarettes distributed by the Seneca Indian Nation. Carfley knew from experience that the Seneca Nation cigarettes were not subject to taxation and therefore were unstamped, and that it was a criminal offense to sell them without a certificate or license.

Carfley then saw Hall walk into a store on the corner while the apparent purchaser walked east on Pleasant Street. Carfley radioed to Officer Eric Brown and directed him to detain Hall, which Brown did as Hall, still carrying the white bag, left the store. Brown seized Hall and put him into the rear of his marked police vehicle. Hall would not have been able to exit without the door being opened from the outside. The white bag was placed on the hood of the vehicle.

Meanwhile, Carfley had left the apartment and after a few minutes came on the scene of the arrest. He opened the door of the vehicle and said to Hall, "not you again," and then asked him if he had a certificate to sell cigarettes. Hall said no. Carfley told him he was under arrest.

Carfley then looked into the bag Hall had been carrying and which was now was on the hood of the vehicle. He saw unstamped green boxes of the Seneca brand of menthol cigarettes, as well as a box of stamped Newports.

No Miranda warnings were read to Hall at any time. In Carfley's opinion, Hall was not free to leave.

CONCLUSIONS OF LAW

Motion to Suppress Statement

Defendant moved to suppress the statement noticed by the People, which consisted of his admission that he did not have a certificate to sell cigarettes.

At a hearing to consider suppression of statements made by a defendant, the People bear the burden of proving beyond a reasonable doubt that the statements were voluntarily made and not the result of coercive police activity (see McKinney's New York Criminal Procedure Law ("CPL") section 60.45[2]; People v Guilford, 21 NY3d 205, 208 [2013]).

Miranda warnings are required whenever a person is subjected to custodial interrogation; that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest, and the questioning is intended to elicit incriminating evidence. (See Miranda v Arizona, 384 US 436 [1966]; People v Bennett, 70 NY2d 891, 893-894 [1987]; People v Shelton, 111 [*2]AD3d 1334, 1336-1337 [4th Dept 2013], lv denied 23 NY3d 1025 [2014]).

The issue of whether a person is in custody is generally a question of fact (People v. Centano, 76 NY2d 837 [1990]). In deciding whether a defendant was in custody, the test is not what the defendant thought, but rather, whether a reasonable person, innocent of any crime, would have believed that he or she was free to go. (See People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]); People v. Brown, 111 AD3d 1385 [4th Dept 2013]). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (People v Macklin, 202 AD2d 445, 446 [2d Dept 1994], lv denied 83 NY2d 912 [1994]).

The People argue that the defendant was not in custody B in fact was not under arrest - and was free to leave up until when he admitted that he did not have a certificate to sell cigarettes.

The Court disagrees. Here, the defendant was detained as he came out of a nearby store, taken to a marked police vehicle, and placed in the rear of the vehicle, which was locked from the outside. Two officers were eventually present. Defendant's bag was taken from him. Under these circumstances, a reasonable person would not have believed that he was free to leave.

While Carfley testified that the defendant was not placed under arrest until he made an admission, and thus was free to leave, that assertion is called into question by the officers's grand jury testimony, which he acknowledged having given, and which consists of a prior inconsistent statement that he had arrested the defendant before defendant's admission. That the arrest preceded the admission is also borne out by the content of the CPL section 710.30 notice (attached to the indictment), consisting as it does of a portion of the police investigative action report describing a sequence of events that has the defendant in custody before the questioning (" ...defendant was taken into custody ...when this officer observed the defendant sell a pack of Seneca cigarettes....While in custody [emphasis added][the defendant] stated ... he did not have a permit to sell cigarettes...").

Thus, the Court concludes that at the time the defendant was asked whether he had a permit or certificate to sell cigarettes, he was in custody and not free to leave. The officer having failed to read the defendant Miranda warnings, and since defendant's admission was not spontaneous but rather was made in response to police questioning designed to elicit an incriminating admission, the People have not met their burden and all statements referenced either in the CPL section 710.30 notice or at the hearing are suppressed and are inadmissible at trial.

Motion to Suppress Tangible Evidence

Defendant also moves to suppress as the result of an illegal search the cigarettes taken out of the white bag he was carrying when he was taken into custody.

"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" (People v Hernandez, 40 AD3d 777, 778 [2d Dept 2007]; see People v Berrios, 28 NY2d 361, 367B368 [1971]).

The People contend that the search was incident to a lawful arrest, in that the officer had probable cause to believe that he had just seen the defendant sell what he knew, based on his experience, to be a pack of Seneca Nation unstamped cigarettes, which is a criminal offense. [*3]Consequently, the officer was justified in searching the bag that he believed contained evidence of the crime for which the defendant was arrested.

The People also point out that even if Officer Carfley did not have probable cause to believe that the defendant was selling unstamped cigarettes (a criminal offense), he had probable cause to believe the defendant had been selling cigarettes without a license which, while not a crime, is an offense (see McKinney's New York Tax Law section 480-a[3][a]; Penal Law section 10 [1]). It follows that a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed in his presence a crime or an offense. (People v DeBour, 40 NY2d 210, 223 [1976], see CPL ' 140.10 [1][a]).

In either case, the Court finds that the officer had probable cause to arrest for the commission of an offense, based on the officer's considerable experience in observing and arresting sellers of illegal cigarettes. It was reasonable for him to conclude, on the basis of what he knew to be a pattern of cigarette sales in the area and the distinctive look of Seneca Nation cigarettes, which New York does not tax, that the defendant had engaged in the illegal sale of cigarettes. AIn a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of circumstances, which takes into account the 'realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents'" (People v Alexander, 218 AD2d 284, 288B89 [1st Dept 1996], lv denied 88 NY2d 964 [1996], quoting People v Cabot, 88 AD2d 556, 557 [1st Dept 1982]).

In opposition, Defendant cites to People v. Hall, 21 Misc 3d 1104(a) (Roch City Ct 2007). In Hall an officer standing at an observation post (with binoculars) saw a man (the same defendant as in the case at bar) exchange cigarettes from a Newport cigarette box for currency bills. The officer could not see whether the box had a stamp on it. The cigarette seller was stopped, frisked, and his backpack searched. Rochester City Court held that as the officer had only a reasonable suspicion to believe the defendant was selling unstamped cigarettes — not being able to see whether the box had a stamp on it - he was not entitled to conduct a full-blown search of the defendant and his backpack.

Defendant's reliance on Hall is misplaced, as here Officer Carfley had more circumstances present before him on which to base an arrest, namely, his knowledge of the defendant and the clearly visible and distinctive Seneca Nation box of cigarettes, known in his considerable experience to be unstamped.

Thus, in light of the totality of the circumstances, the Court concludes that the officer had probable cause to believe that the defendant had committed a criminal offense or a minor offense, either of which would have justified arresting the defendant.

However, the analysis does not end there. The arrest resulted in a warrantless search of the defendant's bag and recovery of evidence, and "All warrantless searches presumptively are unreasonable per se" (People v Jimenez, 22 NY3d 717, 721 [2014]), quoting People v. Hodge, 44 NY2d 553, 557 [1978], thus, the People have the burden of overcoming the presumption of unreasonableness.

In order to do so the People must show 1) that some exigency existed to justify the search of the bag, and 2) that the search was not significantly divorced in time or place from the arrest (People v Smith, 59 NY2d 454, 458 [1983]; People v Jimenez, 22 NY3d at 721-722).

Here, neither requirement was met. The bag was not within the defendant's grabbable area (People v Jimenez, 22 NY3d at 722, quoting People v. Smith, 59 NY2d at 458). Rather, the [*4]bag was safely out of defendant's reach, thus the police could not have reasonably believed that the search of the bag was necessary to preserve any evidence that might have been located in it. (People v Gokey, 60 NY2d 309, 312 [1983]; see also People v Wilcox, 134 AD3d 1397, 1399 [4th Dept 2015]: "At the time the jacket was searched, defendant was handcuffed in an interview room ... and there was no reasonable possibility that the defendant could have reached,'" quoting People v. Morales, 126 AD3d 43, 46 [1st Dept 2014]).

Secondly, the search occurred several minutes after the defendant's arrest and therefore did not occur "contemporaneously" with the arrest (People v Gokey, 60 NY2d at 312).

Thus, the officers were required to secure a warrant before searching the defendant's bag, even though such a requirement creates a "perverse incentive." (Arizona v Gant, 556 U.S. 332, 362 [2009] [Alito, J., dissenting]: "the rule would create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer," as quoted in People v Luna, 35 Misc 3d 1204[A] [NY Sup 2012]).

The Court notes as well the observations of Acting Supreme Court Justice Daniel Conviser of Manhattan, who in a comprehensive review of the case law regarding searches incident to an arrest, writes that

The current rules also create counterproductive incentives. Consider what the police must do when arresting a suspect and obtaining a closed container from his person. On the one hand, the safest course in many cases may be to first secure a suspect and only after that is completely accomplished, investigate a closed container to see what might be there. If that is done, however, the police may need to obtain a warrant to look into it. On the other hand, if the police arrest a suspect and in the fast moving and potentially dangerous process of securing him, look into a paper bag or cigarette box he is carrying, no warrant will be necessary. Yet the police under current law have every incentive to avoid the first scenario. The law points them in the direction of the more dangerous and unpredictable course of action.

(People v. Luna, 35 Misc 2d 1204[A] [NY Sup 2012]).

And this is so even where the reasonableness of the search may be "enhanced" (People v Wylie, 244 AD2d 247, 251 [1st Dept 1997]) by the fact that the police had probable cause to believe that the container or bag sought to be searched contains evidence of the crime for which the defendant was arrested (People v Thompson, 118 AD3d 922, 924 [2nd Dept 2014]).

Notwithstanding, the People have not sustained their burden of showing a compelling reason for the warrantless search, and accordingly, the motion to suppress the evidence seized from the defendant's bag is hereby GRANTED.

The above constitutes the Decision and Order of the Court.

Dated: November 30, 2016

Rochester, New York

____________________________________

HON. CHRISTOPHER S. CIACCIO

Monroe County Court Judge