People v Brown

[*1] People v Brown 2017 NY Slip Op 50783(U) Decided on June 12, 2017 Supreme Court, Bronx County Newbauer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2017
Supreme Court, Bronx County

The People of the State of New York

against

Jonathan Brown, Defendant.



3107/2015



Addisa Gabbidon, Assistant District Attorney, Office of Bronx District Attorney Darcel D. Clark
April A. Newbauer, J.

A grand jury charged the defendant with criminal possession of a controlled substance in the third degree and related charges. Defendant filed an omnibus motion to suppress any physical evidence recovered from the defendant on the grounds that the evidence was the subject of an illegal search and seizure as well as any statements he allegedly made to law enforcement. Pursuant to a decision by Judge Greenberg on August 17, 2015, this Court conducted a Mapp/Dunaway hearing on May 23 and 24, 2017. Prior to commencing the hearing, the People withdrew CPL § 710.30 statement notice. Based on the testimony of the People's witnesses, the defendant's motion to suppress is granted.

FINDINGS OF FACT

The People called as witnesses two detectives who were employed by the New York City Police Department for eleven and twenty-three years respectively. Both had received extensive training in street level narcotics enforcement. On August 11, 2015, the detectives were assigned to the Bronx Gang Squad and working the 10:00 p.m. to 6:33 a.m. tour in plain clothes in an unmarked police car. Detective Jose Rodriguez was driving, a lieutenant who did not testify was in the front passenger seat and Detective Jeffrey Scalf was a back seat passenger.

Detective Scalf was the arresting officer and testified first. He stated that while on patrol on August 11, 2015 at approximately 2:59 a.m., he observed a vehicle parked on the right side of Tiebout Avenue the street parked away from the curb. As the detectives' unmarked van passed by, Detective Scalf observed two occupants inside, a white male in the driver's seat and a white female in the front passenger's seat. Detective Scalf noticed that the white female passenger appeared to have what he suspected to be a glass pipe in her right hand. Detective Scalf relayed this information to his partners, and the team decided to observe further. Detective Rodriguez pulled up and parked at the intersection of East 180th Street and Tiebout Avenue.

After several minutes, the car approached the intersection where the detectives were parked. The driver of that vehicle rolled through the pedestrian cross walk past the "Stop" sign. At that point Detective Scalf noticed that the same two individuals were seated in the front of the car but also that the defendant was in the rear passenger seat behind the driver. The detectives began to follow this car. Detective Scalf testified that in the vicinity of 2103 Webster Avenue, the car crossed over a double yellow line into oncoming traffic and made a left into a gas station. The detectives pursued, initiated their emergency lights and made a traffic stop.

Detective Scalf testified that the rear seat passenger—later identified as the defendant [*2]Jonathan Brown—began nervously looking behind him and moving toward the car door to get out as the unmarked police car pulled them over. Detective Scalf stated that he approached the rear seat on the passenger side, and his lieutenant approached the front passenger while Detective Rodriguez went over the driver. Detective Scalf stated that he had no reason to be suspicious about the defendant prior to this point. As Detective Scalf approached, the defendant stated to him, "What's going on? What are you pulling us over for?" Detective Scalf told him to relax. It was then that the defendant moved around, looking very nervous, and reached to the rear passenger door as if to get out of the car. Detective Scalf testified that Detective Rodriguez then came around the car and that "[I] wouldn't say pushed me out of the way but" he took control of the door. The defendant started to move towards the other door. Detective Scalf testified that Detective Rodriguez next reached inside the car and placed the defendant in handcuffs and pulled the defendant out of the car. As Detective Rodriguez was pulling the defendant from the car in handcuffs, Detective Scalf observed small blue pills falling onto the street coming from the defendant's shorts. Detective Scalf believed these pills to be controlled substances.[FN1] Detective Rodriguez then searched the defendant and recovered packages of pills believed to be oxycodone and heroin in defendant's groin area of his shorts.

When asked why they pulled the defendant out of the car, Detective Scalf testified that it was the way the defendant was acting nervous and moving around in the car:

Just due to his—the way he was acting. He was a passenger in a vehicle. He was very nervous. During my experience on this job, I've seen the driver very nervous at times, but the passenger in a vehicle shouldn't be nervous. They're not the ones that are getting pulled over. As I stated, he was moving around. He was asking a lot of questions. And for my safety, I just felt like he was—maybe he had a weapon or some type of narcotic on him. So at that point, we decided to pull him out of the vehicle. ...[i]n my training and experience, the car stops I pull over, do passengers act nervous? Very rarely, unless they're doing something wrong......

Detective Scalf further testified that the defendant had not done anything improper when he first observed him; had not committed any offense; and as the passenger had not committed a traffic violation.

Detective Rodriguez testified that he first saw the vehicle in which the defendant was passenger when it was parked at a hydrant with its rear sticking out. He stated that the car did not come to complete stop at 180th Street and crossed yellow lines to turn into a gas station against incoming traffic. When their van pulled up behind the car, the defendant [FN2] was looking to see the officers, made eye contact with Detective Rodriguez, and turned his body toward the front of the car. Detective Rodriguez testified that the defendant moved his shoulder and lifted his right arm, and looked to him as if he were "doing something in front of his waist." Detective Rodriguez did not attempt to explain how he was even able to observe the area of the back seat passenger's waist from his vantage point in the police car behind the stopped car. He also said the defendant bent forward at one point. There was no description of the sequence of these motions, or how rapid they were. The detective did not say he observed the defendant to be holding or hiding anything. Detective Rodriguez did say that the manner in which the defendant was moving around made him very nervous. At one point he indicated he thought that the defendant had a firearm or weapon (Tr. 47) while at another he denied that he thought the defendant was reaching for a weapon. (Tr 49-50) On cross examination, Detective Rodriguez [*3]admitted that he never told the grand jury panel when asked about the circumstances of defendant's arrest that he observed the defendant moving his hands in a suspicious way toward his waist.

Detective Rodriguez said he approached the driver's side of the car to engage the driver and determine the reason why he did not stop at the stop sign and crossed the double lines. Detective Rodriguez testified he alerted Detective Scalf and the lieutenant several times to watch the defendant's hands, although Detective Scalf did not mention this in his testimony. The lieutenant went over to the female on the front passenger side while Detective Scalf went over to the defendant in the back seat. The defendant was not instructed in any way as to what to do or what not to do except to "relax" by Detective Scalf. According to Detective Scalf, the defendant reached for the handle of the rear passenger door and attempted to open the door.

Detective Rodriguez admitted that he then slammed one of the back doors shut, pushed the defendant further inside the vehicle and placed handcuffs on the defendant. Detective Rodriguez stated that he did so for his safety and for the safety of his partners. As the defendant was pulled from the car, both detectives said they saw small blue pills begin to fall to the ground from the legs of the defendant's pants. This was the first time either them saw any contraband.[FN3]

Outside the car while the defendant was cuffed, Detective Rodriguez frisked the defendant. Detective Rodriguez felt an object from the groin area of the defendant's shorts. Detective Rodriguez recovered a clear plastic bag of a powdery substance believed to be heroin and 339 pills believed to be oxycodone divided into four separate packages, one of which was opened. Detective Rodriguez also testified that he recovered a couple bags of what appeared to be marijuana from the defendant. These items were given to Detective Scalf who vouchered them. Detective Rodriguez also stated that prior to pulling the defendant out of the car, no one had identified the defendant as committing any illegal activity; he was not the subject of any investigation; he had not committed any violation of the law that the detective was aware of; he was not driving the car; and that the defendant was simply a back seat passenger in a car.

Neither detective identified the make or model of the car; whether the windows were tinted; whether they were open or closed during their observation; or what part of the interior of the vehicle could be observed at any point in time during their encounter. There was no testimony as to whether the driver or front seat passenger were ordered out or to stay in the vehicle and whether they were questioned. It is not clear whether the driver was issued a summons for the traffic infractions. The female passenger was arrested and charged with possession of a glass pipe.

CONCLUSIONS OF LAW

In seeking to introduce the physical evidence attributed to the defendant on their direct case at trial, the People bear the burden of providing evidence of the legality of the police conduct which led to the seizure of evidence. People v. Whitehurst, 25 NY2d 389, 291 (1969); People v. Malinsky, 15 NY2d 86, 91, n.2(1965). Once the People have met their burden, the defendant has the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361 (1971). Any inquiry into the propriety of police conduct must weigh the degree of intrusion involved against the precipitating and attending circumstances out of which the encounter arose. People v. Salaman, 71 NY2d 869, 870 (1988); People v. DeBour, 40 NY2d 210, 223 (1976). The court must determine whether the police conduct was reasonable considering the totality of the circumstances. People v. Batista, 88 NY2d 650, 653 (1996).

Criminal Procedure Law section 140.50 provides, in part, that "a police officer may stop a person in a public place . . . when he reasonably suspects that such person is committing, has [*4]committed or is about to commit either (a) a felony or (b) a misdemeanor . . . and may demand his name, address, and an explanation of his conduct." Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice. See People v. Cantor, 36 NY2d 106, 112-113.

Based upon the testimony at the hearing, there was an articulable and credible reason for the detectives to stop the vehicle in which the defendant was a passenger. The detectives testified they observed the car in which the defendant was traveling double parked in front of a fire hydrant, then followed it as it rolled through a stop sign without coming to a complete stop and finally crossed over a double yellow line to enter a gas station.[FN4] The detectives pulled the vehicle over for violations of the Vehicle and Traffic Law. At the hearing, the defense essentially conceded that the driver's violations of the Vehicle and Traffic Law justified the initial police stop of the car. See People v. Smith, 1 AD3d 965 (4th Dept. 2003).

Once a traffic infraction has been committed, officers may take appropriate protective actions for their safety. Both the United States Supreme Court and the New York Court of Appeals have recognized the potentially dangerous situations police officers encounter in conducting traffic stops, and that the danger is increased by the presence of more than on occupant of the car. See Maryland v. Wilson, 519 US 408; People v. Robinson, 74 NY2d 773, 774, cert denied 493 US 966. For example, the police may request all occupants to get out of the car so they can readily observe their movements. See id. at 775; People v Diaz, 41 NY2d 876, 362 NE2d 609, 393 NYS2d 978 [1977], cert denied 434 US 939, 98 S Ct 431, 54 L Ed 2d 299 [1997]; People v Grant, 83 AD3d 862, 863, 921 NYS2d 285 [2011]; People v Willis, 66 AD3d 926, 887 NYS2d 634 [2009]. See also Pennsylvania v. Mimms, 434 US 106 (1977). The same interest in an officer's safety exists, regardless of whether the occupant of the stopped vehicle is a driver or a passenger. See Maryland v Wilson, 519 US 408, 413; People v. Anderson, 17 AD3d 166 (1st Dept 2005), citing People v Alvarez, 308 AD2d 185,187 (1st Dept 2003); People v Thomas, 275 AD2d 276, 278 (1st Dept 2000).

In People v. Garcia, 20 NY3d 317 (2012), the Court of Appeals found that traffic stops were subject to the same framework as street encounters under People v. De Bour, 40 NY2d 210 (1976) and People v. Hollman, 79 NY2d 181 (1992). Therefore, officers are allowed to proceed from an observation standpoint of the occupants to questioning them only if there is some indicia of criminality. Nervousness alone does not satisfy that test, because being nervous is not an indication of criminality. Id. at 324, citing People v. Milaski, 62 NY2d 147 (1984); People v. Banks, 85 NY2d 558 (1995).

Based upon safety concerns, several appellate courts have held that officers may require the driver and any passengers to remain in the car until the stop is over even if the police do not have a particularized reason to believe that anyone in the vehicle has a weapon. People v. Yates, 307 AD2d 593 (3rd Dept 2003); People v. Forbes, 283 AD2d 92, 95-96 (2nd Dept 2001), lv denied 97 NY2d 681 (2001). The Second and Third Departments have held that the occupant may be detained in the car while the officers conduct a full investigation (see People v. Yates, [*5]307 AD2d 593 (3d Dept 2003); People v. Forbes, 283 AD2d 92 (2d Dept 2001))[FN5] , while the First Department has not yet ruled on this question.[FN6]

Analyses under De Bour must be nuanced, some argue overly so.[FN7] Every application of the De Bour principles will be different. See, e.g. People v. Brannon, 16 NY3d 596 (2011). A passenger in a stopped vehicle may be asked for basic information. See, People v. Montero, 284 AD2d 159 (1st Dept 2001). In this instance, a mere passenger was forcibly removed from a vehicle; it is useful to consider cases in which officers were found to have the requisite "reasonable suspicion" to intrude into a stopped vehicle whose occupants had been removed and frisked. Similarly, "[t]he court's focus must center on whether the police conduct was reasonable in view of the totality of the circumstances, for reasonableness is the touchstone by which police-citizen encounters are measured" (People v Anderson, 17 AD3d 166, 167-168, 793 NYS2d 353 [2005] [citations omitted]). While each case presents unique facts, appellate courts have uniformly upheld police action based on a combination of "(1) movements within a car suggesting that the defendant was reaching for something that might be a weapon and (2) some other suggestive factor(s) sufficient to justify the limited intrusion of searching the area where a defendant's movements took place (citations omitted)." People v. Newman, 96 AD3d 34, 42 (1st Dept 2012)(emphasis added).

No such factors support the police action here. The defendant's conduct failed to justify his immediate handcuffing and forcible removal from the car. The defendant had not been ordered to get out or the car or stay in the car. The defendant was not ordered to keep his hands within view (See, People v. Tyler, 262 Ad2d 136 (1st Dept 1999)), or to answer any questions. This was not a dynamic situation during which the officer's belief blossoms by virtue of responses or the defendant's "utter refusal" to face officers and respond. See People v. Perez, 142 AD2d at 415. When the defendant fidgeted and started to exit, he was summarily removed, without further ado, handcuffed and hauled out. Such a bodily intrusion without adequate suspicion of wrongdoing will not pass scrutiny under De Bour. See People v. Campbell, 245 AD2d 191 (1st Dept 1997). See also People v. Ford, 145 AD3d 1454 (4th Dept 2016).

The officers' statements about their observations of the defendant were problematic in different ways. Detective Scalf's testimony was credible in all respects, yet he could not fathom why the only black occupant of a car stopped by the police should have been nervous. The detective's subjective opinion that the defendant's nervousness was suspicious was not coupled [*6]with any objective testimony about actual furtive conduct. Rather, it was this detective's assessment—offered in a candid manner at the hearing—that the defendant's nervousness and desire to get out of the car led directly to the next police action, which was to cuff and remove him. This officer's experience is not sufficient to justify the action that was taken. Cf. People v. Banks, 85 NY2d 558.

Detective Rodriguez offered a more patent and palatable explanation for the police action, but the accuracy of his testimony is highly suspect. This incident occurred almost two years ago. Detective Rodriguez, who has made 600-700 drug arrests, was not responsible for either the arrest or the paperwork, and made absolutely no notes of this incident. He required an exhibit to refresh his recollection of the defendant's name, and although he made a courtroom identification, there was just one African American man in the courtroom at the time. That person was the defendant, and he was seated next to his attorney at counsel table, wearing a red Tshirt. Detective Rodriguez nonetheless testified that he remembered this particular defendant from August 15, 2015 moving in a furtive way that Detective Scalf did not relate, that neither officer recorded in any writing and that Detective Rodriguez himself did not convey to the grand jury. Detective Rodriguez also claimed he could see the defendant doing something at his waist level, which must be viewed with skepticism given that the detectives were seated in a car behind the stopped car. Detective Rodriguez's memory and recitation of these salient facts thus lacks much potency. His testimony that the defendant moved his arm up and down and reached down to his waist is rejected, as less a product of his actual memory than an amalgam of other encounters or an effort to tailor his testimony to fit legal requirements. See People v. Manning, 51 AD2d 933 (1st Dept 1976); People v. Garafolo, 44 AD2d 86 (2d Dept 1974).

Before the traffic stop this passenger was not suspected of any crime, yet his moving and nervousness supposedly prompted significant concern. The detectives failed to give clear direction to the defendant to stop moving, show his hands, keep them in front of him or get out of the vehicle.[FN8] The passenger's nervousness, arm movement and desire to get out of the car did not justify the sharp escalation in police action. See People v. Perez, 142 AD3d 410; People v. Barreras, 253 Ad2d 369. The defendant's removal constituted significant police intrusion. Besides evaluating the length of a detention, the court must scrutinize the breadth of police action under De Bour to determine if it is reasonably related to the defendant's conduct.. As Detective Scalf related it, the two detectives simply swooped in and handcuffed him. This was level three De Bour action without justification.[FN9]

In many a traffic stop, an officer's detailed description of the defendant's movements persuades the trial court of a rational concern for a weapon. See People v. White, 113 AD3d 532 (1st Dept 2014)(weapon was admissible where police grabbed defendant's arm after observing him acting nervous and breathing heavily in the front passenger seat of a vehicle while the back seat passenger was looking back at the police car and then ducking and lifting his arm up and down in at attempt to stuff something under the seat of the car); People v. Eure, 46 AD3d 386 (1st Dept 2007)(officers observed defendant shifting his body to the left and as the officer approached, the defendant turned left two more times); People v. Campbell, 293 AD2d 396 (1st Dept 2002)(defendant's sudden placement of hand behind his back was sufficiently suspicious to warrant the officer's minimal intrusion of placing a hand on defendant's back to prevent him from drawing a weapon. However, Detective Rodriguez's testimony failed to provide a credibly [*7]reasonable and objective basis to fear for the officers' safety, considering all the circumstances, including his omission of facts in the grand jury and the arresting officer's differing recollection.

Finally, although the People did not argue the theory of inevitable discovery, the court rejects that notion. The defendant could have been lawfully ordered out of the car and the contraband seized when it fell, but the defendant could also have been ordered to remain in the vehicle. In fact, Detective Scalf testified that he was not intending to let anyone leave the car until the investigation was completed, even though he never told the defendant to sit tight and wait before he was handcuffed and removed.

The defendant's motions are granted in their entirety, and the physical property is suppressed.

This constitutes the Decision and Order of this Court.

ENTER,

Dated: June 12, 2017

Bronx, New York

________________________________

HON. APRIL A. NEWBAUER

Acting Supreme Court Justice Footnotes

Footnote 1:On cross examination, Detective Scalf indicated that he never mentioned seeing the pills falling from the defendant's shorts in the criminal court affidavit.

Footnote 2:Detective Rodriguez could not recall the name of the defendant and his memory had to be refreshed with the on-line booking sheet.

Footnote 3:The criminal complaint merely indicates that Detective Scalf observed 339 blue pills on defendant's person.

Footnote 4:Simply crossing a double yellow line is not a traffic violation. Solid yellow lines may be crossed to make a left turn (VTL §1126(A)), and crossing yellow lines coming in or out of a commercial driveway is not unlawful if traffic is not impeded. See, e.g., People v. Sykes, 27 Misc 3d 133(A) (App. Term 9th & 10th 2010). However, as there were other bases for the stop, there need not be further analysis of the driver's actions here.

Footnote 5:Once the appropriate level of investigation is concluded, however, the police cannot continue to detain the occupants. See, People v. Perez, 142 AD3d 410 (1st Dept 2016); People v. Barreras, 253 AD2d 369 (1st Dept 1998).

Footnote 6:In People v. Edwards, 2001 Slip Op 40617(U)(Sup Ct Bronx Co), the court, applying the Forbes rule, upheld the police detention in handcuffs of occupants of a van where they were suspected of committing a felony. See also People v. Wellington, 2013 Slip Op 31902 (U) (SupCt Kings Co)(variety of factors justified car based safety detention, including multiple vehicles stopped after they drove together from a lounge in a high crime neighborhood with their headlights off to a secluded private street). In his dissent in People v. Garcia, 20 NY3d 317 (2012), Judge Smith argued that the police should have the right to question occupants of a lawfully stopped vehicle because a stop is a form of level three De Bour detention. The majority rejected this analysis, however, as discussed infra, and therefore it remains undetermined whether the Court of Appeals will rule that the police can order passengers to remain seated inside a vehicle stopped for a traffic violation, without the presence of any other factors.

Footnote 7:See Andrew Denney, "After 40 Years, De Bour Author Sees Need for a New Look," NYLJ May 23, 206.

Footnote 8:See People v. Alejandro, 142 AD3d 876 (1st Dept 2016).

Footnote 9:The law doe not necessarily reward the otherwise valuable experiential judgments of police officers. Because of the privacy interests of ordinary citizens, successful deterrence of crime by law enforcement may not translate to a successful result in court. See Mapp v. Ohio, 367 US 643, 659.