People v Fell

[*1] People v Fell 2004 NY Slip Op 50986(U) Decided on July 2, 2004 Supreme Court, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2004
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff

against

RHONDA FELL and JULIUS WILLIAMS, Defendants.



928/03

Phylis Skloot Bamberger, J.

The defendants, Rhonda Fell and Julius Williams, were indicted for criminal possession of a controlled substance in the first and third degrees. The narcotics were asserted to have been found in a Cadillac that was searched on the Bruckner Expressway. Williams is also charged with resisting arrest, escape in the third degree, and aggravated unlicensed operation of a motor vehicle. Fell is charged with attempted tampering with physical evidence.

Another judge granted Williams' pre-trial motion for a Mapp hearing to determine whether the stop of the Cadillac was proper and whether money found on Williams' person was properly seized. The judge found that, based on factual allegations in the motion, Williams had no standing to challenge the search of the Cadillac. A Huntley/Miranda hearing was also ordered.

That judge also granted Fell's pretrial motion for a Mapp hearing to determine if a search of the Cadillac was proper and whether cocaine found in that vehicle should be suppressed. The judge granted, as well, a Huntley/Miranda, and Dunaway/statement hearing.

The hearings were held on February 10, 11, 24, 25 and April 30, 2004. Highway One Police Officer Scott McQuiston, Lieutenant Kevin Perry, Police Officer Keith Walker, and Detective John Latimer testified for the People.[FN1] Police chemist Miriam O'Sullivan testified for the defense.

The motions of both defendants are denied.

Testimony

Officer McQuiston testified that he was a police officer for twelve years and had been assigned to Highway One for seven years. His job included "car enforcement," providing for the free flow of traffic, preparing accident reports, and helping people whose vehicles were disabled on the roadway. He said he was "basically [a] traffic or vehicle enforcement officer, sort of like a highway patrolman."

McQuiston explained in his testimony that he was trained to estimate the speed of vehicles, to use the sideview mirror of his patrol car to observe vehicles as they approached from behind him, and to make "independent visual estimates" of the speed of those vehicles. He explained that after the estimate was made and his attention was aroused because he observed that a vehicle was exceeding the posted speed limit, he used traffic radar to measure the vehicle's [*2]speed. He explained how Doppler radar worked. He testified the radar instrument was calibrated once a year, and that he used the same instrument all the time, taking it with him from car to car as the vehicle he used changed. He did not know the exact date on which the machine had been calibrated prior to the defendants' arrests, but knew the instrument was "current" at the time of the hearing and that it had a sticker on it shpwing the test dates.

McQuiston testified that on February 5, 2003, he used a police vehicle that had a video system mounted on the top of the windshield. The camera was positioned directly in front of the police car and could record what was ahead of the police car and a few feet on either side. McQuiston also had a microphone on his person to record audible sound. The recorder for both audio and video was in the trunk of his police car. The video and audio recordings were on the same tape which was introduced as a defense exhibit.

On that day, at about 4:00 p.m., McQuiston was in his marked car in uniform and working alone as he monitored traffic speed on the elevated Bruckner Expressway, below which was Bruckner Boulevard, in the area of White Plains Road. McQuiston was watching for "speeders," that is people exceeding the speed limit. He was parked parallel to the main portion of the expressway at the right shoulder and was sitting in his stopped vehicle, with his motor idling, watching in his side view mirror cars that were behind him and coming up to pass. He made an independent observation of the speed of an oncoming car and then used his radar instrument when he observed the vehicle to be speeding.

He pulled over a Cadillac, driven by the defendant Williams, for exceeding the posted speed limit. The Cadillac stopped on the right shoulder of the southbound lane of the Expressway. McQuiston stopped his police vehicle behind the Cadillac.

The tape of the scene shows an irregular flow of traffic, with some large trucks, and the proximity of some of the passing large vehicles to the Cadillac as it stood on the right shoulder of the Expressway. The tape shows McQuiston left the police car and went to the passenger side of the Cadillac and that Williams pulled the Cadillac further off the road at McQuiston's direction. The tape also shows McQuiston standing at the front passenger window of the Cadillac, appearing to speak with a person inside. There are no audible voices on the tape at this point. McQuiston testified he told Williams what the violation was and asked for his license and registration. Williams produced a New Jersey driver's license and said he was going to the hospital to see his sick mother.

The tape shows that McQuiston then walked in the direction of his car which was behind the Cadillac. He testified that at his car he conducted a computer check of New York State motor vehicle records. The computer check conducted by McQuiston showed that the Cadillac was registered to defendant Fell and that Williams' New York State driver's license had been suspended and then revoked. McQuiston decided to arrest Williams for aggravated unlicensed operation of a vehicle and he used his radio to call for additional officers to assist in the arrest.

As McQuiston waited for the assistance, the video shows Williams walked from the Cadillac back to the police car on the traffic side of the cars. Williams asked McQuiston if he could call his wife and asked how long the wait would be. The tape of the voices shows that McQuiston gave Williams an estimate of the time the stop would take and that he told Williams that Williams he could make the call, but that he was to stay in his car. The defendant returned to his car. McQuiston made another radio call for additional officers and said that Williams was agitated. McQuiston's testimony supplied the same information that was on the tape.

McQuiston testified that about ten minutes after he pulled the defendant to the side of the road, a Plymouth Neon [FN2] driven by the defendant Fell approached and pulled in front of the Cadillac on the right shoulder of the Expressway. Fell walked back from the Neon to the driver's side of the police vehicle. The video shows Fell walked to McQuiston. On the tape she is heard saying the car is hers and asking "what's the problem?" McQuiston is heard on the tape telling [*3]Fell that he stopped the car for exceeding the posted speed limit. She again says the car is hers. Mcquiston says there is a problem, that Williams had multiple suspensions of his New York State driver's license, and that it was revoked. On the tape, McQuiston is heard telling Fell that Williams had nine suspensions of his license, that it had been revoked, and that he had an outstanding judgment.

Also on the tape, Mcquiston is heard saying to Fell that he was giving her the information because she was a member of the service and a school safety officer, that their conversation was recorded and that he couldn't do anything to help. Although not audible on the tape, McQuiston testified Fell had already identified herself and her job as a school safety officer.

Fell asked what would happen to the car. McQuiston responded there would be no problem: that if she had a valid license and registration for the car "he supposed" he could release the car.

On the tape, McQuiston tells Fell he is waiting for a response, asked Fell not to alarm the defendant who already seemed agitated, and said there is nothing he could do. Fell is heard saying that a rental car check did not turn up anything about Williams' license revocation. McQuiston was asked over the radio for his location and gave it. When asked by McQuiston, Fell said she was a friend of the defendant.

McQuiston explained in his testimony that he was stalling for time because he needed help. He was faced with a fairly large perpetrator, driving illegally, with a sick mother ("the domestic aspects of the situation"), on a multiple lane highway with "traffic going by."

McQuiston testified that, as he waited for other officers, Williams called to Fell from the Cadillac and Fell went to the driver's side door of the Cadillac in which Williams was seated. McQuiston testified he was unsure of the true relationship between Williams and Fell and did not want them together, and that he felt he needed to take Williams into custody even though the other officers had not arrived yet.

McQuiston walked to the Cadillac. Williams was still seated in the Cadillac with the motor on. McQuiston asked Williams to turn off the motor and get out of the car. Williams got out of the car, but did not turn off the motor. In the face of dangerous traffic with a foot of space to spare, McQuiston took Williams by the arm and tried to push him behind the Cadillac and into the emergency shoulder to put handcuffs on him. McQuiston said that when the defendant came out of the Cadillac, the keys to the Cadillac were in the ignition and the car could have been driven away. McQuiston also testified the Cadillac trunk had no external lock cylinder or keyhole and that it could be unlocked with a remote control or, possibly, a release mechanism inside the car.

As McQuiston walked with Williams, Williams broke away from McQuiston, crossed over the shoulder and jumped over the railing of the elevated Expressway onto the Boulevard below. McQuiston chased Williams on foot. Williams' removal from the car, Fell's presence, and Williams' flight are visible on the tape.

In a series of radio transmissions, McQuiston reported that he was in a foot pursuit, described Williams, reported the direction of flight, and reported the approximate locations as the chase continued.

The keys were still in the police vehicle and the motor was running, so while McQuiston was chasing Williams, the video camera on the patrol car was running. The tape shows the defendant Fell alone on the shoulder of the Expressway with the Cadillac. The tape shows Fell got into and out of the passenger side of the Cadillac, got into and out of the driver's side of the car several times, and went to the trunk several times. The tape shows the arrival of Officer Latimer.

Detective John Latimer testified that on February 5, 2003, at 4:00 p.m., he went to Bruckner Expressway and Fteley Avenue as a result of a call for assistance by an officer in a foot chase on the Bruckner Boulevard under the Expressway. He was in uniform and arrived in a few seconds. He was the first officer to arrive and was without assistance. He saw a Dodge Neon and a dark blue Cadillac facing in a westerly direction parked on the Bruckner Expressway. A [*4]marked highway patrol car was behind them. The lights of the police car were on and the driver's side door was open. He saw Fell coming from the Neon, the forward car, going in the direction of the patrol car. He thought she was going to the patrol car.

Because Latimer was on the east side of the Boulevard, he had to go east to turn around to get to the west lanes. After arriving on the west side, he climbed the wall from the Boulevard to the Expressway and, as he climbed the barrier on the right shoulder, he saw Fell in the second car, the Cadillac parked in front of the patrol car, which was "rather unusual." As I got on the scene, I had to come up the wall from the Bruckner Boulevard to the Bruckner Expressway. As I climbed up over the wall, I observed the female inside the second car, the one parked immediately in front of the patrol car.... She was acting rather erratic. She was going like searching through the whole car from the front seat to the passenger's seat to the back seat, over her shoulder, you know, in a very frantic manner.

Fellwas in the driver's seat "looking behind it in a frantic manner going underneath the seat, basically ripping the car apart." Latimer continued:

Well, as I was climbing up over the wall, I observed her inside the car. I kept my eye on her because I was a little alarmed that she was in that car, and I kept my eye on her. So, as long as it took me to climb over the wall. As I got to the rear of the car, she stepped out of the vehicle and started coming towards me. So, I never took my eyes off her.

Latimer looked at her for half a minute.

As Latimer approached the rear of the Cadillac, Fell came from the Cadillac to him. She said she was "a member of the service and on the job." She said she stopped to offer assistance to the officer. Then she said she stopped in her car, the Neon, because the Cadillac was her car. Latimer asked where she worked. She said at the 45th precinct and that she was a school safety officer. Then, Officer Latimer testified, she just "started giving me a whole bunch of different stories." She "started rambling." She was very nervous, could not stand still, and acted erratically. Latimer did not ask her for identification and he did not recall if she said she was looking for the keys. He handcuffed her for his safety because of the unusual circumstances.

In about a minute other officers arrived. He spoke to them and to Officer Walker and told them about his observations of Fell, that she had been inside the Cadillac going through it looking for something.

Officer Walker testified that on February 5, 2003, at about 4:00 p.m. he was at the 43rd precinct and left there in response to a call of an officer needing help. He drove in an unmarked police car with Sergeant Brannigan, Officer Hereira and another officer to the service road of the Bruckner Expressway and Fteley Avenue. When he got there he saw Officer McQuiston walking with defendant Williams. (McQuiston testified the chase was brief and that over $5,000 was found in Williams' pocket when he was searched after arrest.) McQuiston asked Walker and other officers to secure the cars that were stopped on the Expressway. Officer Walker climbed up the wall to the expressway. McQuiston's car was still running with the turret lights on. Ahead on the Expressway, parked on the right side, was a Neon.

Walker saw Officer Latimer standing behind a Cadillac with defendant Fell. He did not see Fell doing anything, and he testified that she was not handcuffed. Officer Latimer told Officer Walker that Fell was "digging in through the front seat and back seats of the Cadillac," and "digging through the front and back of the Cadillac inside." More officers, both in plain clothes and uniform, then arrived.

In anticipation of driving the Cadillac to the precinct, Walker went into the Cadillac from the driver's door to examine the front and back seats. He wanted to make sure there were no [*5]guns in the car. There were no keys in the ignition. He checked the inside and underneath both the front and back seats. While checking the back seat Walker pulled down an arm rest in the middle of the back seat and a hatch behind the armrest "pull[ed] down also." Walker testified he pulled down the hatch. Inside the back was a black bag. The package was a triangular shaped solid brick in a black plastic bag comparable to a bag used for a sandwich or pizza. Walker said that when he saw the bag and picked it up he thought it was a gun because the shape wrapped in cloth was hard and heavy. But as he pulled it out he realized it was not a gun and believed it to be cocaine.

Officer Bulding came to Walker from the Neon. He gave Walker the keys to the Cadillac. At the time, Walker did not know where Bulding had gotten the keys but later learned he got them from the Neon. Walker opened the trunk by pushing a button on the keychain. There were five other officers present. He searched the trunk because "I was the one transporting the car to the precinct, I wanted to make sure there was nothing else in the car to hurt me." Walker testified he was not worried about someone hiding in the trunk. He looked for weapons in the trunk, but saw none. He did see shopping bags and boots and a brick in a black bag in the shape of a hero sandwich. He knew it was not a weapon, but opened it anyway and found the cocaine.

Walker, along with Officer Hereira, took the Cadillac to the precinct. At the precinct, Walker gave the drugs to McQuiston. While Williams was in the detention facility at the 43rd precinct, McQuiston went to check on him and without any questioning Williams said "you already made a couple of mistakes. That's why attorney's get paid."

Lieutenant Kevin Perry, in the Internal Affairs Bureau assigned to the investigation of school safety officers, testified he conducted an interview with Fells at the 43rd precinct at about 8:30 p.m. Perry advised Fell of her Miranda rights. Fell waived her rights and made a statement. She said she responded to the Bruckner Expressway because Torres had gotten caught, had been stopped by the police and she went and spoke to the police officer and she was waiting. Mr. Torres ran away from the police officer. She stood by waiting for them to return and, when other police officers showed up, she was arrested. Perry testified Fell changed the name from Torres to Williams. The interview was taped and was 22 minutes long. The interview stopped when Fell asked for a lawyer.

Miriam O'Sullivan, a Police Department criminologist, testified that she analyzed the narcotics seized in this case. She received two packages from the evidence clerk on February 6, 2003. Both were black bags each containing a package surrounded by several layers of duct tape. One was a rounded pyramid shape and the other was a hero sandwich shape. Inside the duct tape of one package was a clear plastic bag containing solid material; inside the duct tape of the other package were five clear plastic bags. The exterior felt mushy because of the tape. The contents of the bag were harder. She tested the bags and found them to contain cocaine.

Findings and Conclusions

This court finds the witnesses to be credible and the testimony reliable. Much of the testimony is confirmed by the tape of the incident made with the camera posted on the front of the vehicle that McQuiston was driving. Even though portions of the tape are inaudible and the views depicted other parts of the tape are partially obscured because of the position of the camera and the sun glare, the testimony of the officers is substantially corroborated by the tape.

1. The Stop of the Car Was Proper.

The testimony of McQuiston was based upon his observations made after training and seven years of experience as an officer assigned to Highway One. He explained that he was taught to estimate the speed of a vehicle coming up from behind him by observing the vehicle in the sideview mirror while his car was standing still. McQuiston also testified that a vehicle that is considered exceeding the speed limit based on his observation is then monitored by radar. This radar instrument, testified McQuiston, is used by him regularly and is transferred by him to the [*6]car to which he is assigned. Based on McQuiston's testimony about his observations of the car and the radar measure, there was probable cause to conclude that the defendant Williams was speeding as he drove the Cadillac on the Bruckner Expressway.

Both defendants assert that there was no probable cause to believe that the defendant was speeding because the precise radar device and the date it was checked for accuracy were unknown. According to the defense argument, if the testimony about the radar is disregarded, only McQuiston's subjective appraisal that the defendant was speeding is available but he did not show that he was an expert so as to allow reliance on his opinion. The defense argued that McQuiston's opinion would be insufficient to sustain a verdict after trial.

Counsels' argument that the testimony that the officer observed a car speeding is insufficient to prove speeding beyond a reasonable doubt is incorrect. The testimony can be sufficient to prove guilt beyond a reasonable doubt. People v. Olsen, 22 N.Y.2d 230 (1968). Because the required probable cause standard for arrest, People v. Robinson, 97 N.Y.2d 341 (2001), is a lower one and only requires evidence that the it is more probable than not that the illegal conduct took place, see People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981), the testimony of a trained expert police officer can be sufficient to meet the probable cause standard.

Further, it is proper to assume that a police officer with more than one year's experience can visually estimate the speed of a moving vehicle. People v. Saylor, 166 A.D.2d 899 (4th Dept.), lv. denied, 77 N.Y.2d 966 (1991). Here, McQuiston had seven years experience on the job and testified that he had been trained to observe the speed of vehicles. Compare People v. Mandato, 195 Misc.2d 636 (App. Term 2d Dept.), lv. denied, 100 N.Y.2d 563 (2003), where the officer had no training in the visual estimation of the speed of moving vehicles and he admitted his equipment might be faulty.

In addition, the use of speed measuring devices is proper to support the visual observations of the officer. Here, McQuiston knew how the equipment worked and described the principles of the Doppler method of detection. See People v. Knight, 72 N.Y.2d 481 (1988). Detailed proof of the working order of the equipment is not needed for the pretrial suppression hearing. People v. Saylor, supra, 166 A.D.2d at 899. Nevertheless, McQuiston testified that the equipment was tested annually and that he used the same instrument everyday.

The record shows there was probable cause to believe that the defendant was speeding and that it was proper to stop the car.

2. The Arrest of the Defendant Williams and the Seizure of Currency from His Person Was Proper

After the car was stopped, McQuiston had the authority to ask for Williams' license and registration. People v. Ingle, 36 N.Y.2d 413 (1975). Williams handed over a New Jersey license. When he put the defendant's information into the computer, see, e.g. People v. Taverez, 277 A.D.2d 260 (2d Dept. 2000), lv. denied, 96 N.Y.2d 908 (2001), McQuiston learned that the defendant's New York State driver's license had been suspended nine times, that it had been revoked, and that some kind of judgment was pending. McQuiston had probable cause to arrest the defendant for aggravated unlicensed operation of a motor vehicle in the second degree. V.T.L. Section 511 (2)(a)(iv). That crime is a misdemeanor.

Williams was arrested after he fled from the Expressway by jumping over the guard rail. The arrest was proper because there was probable cause to arrest him for the illegal driving and because he resisted arrest. The search of his person was proper as incident to a legal arrest as was the seizure of the currency from his person. [*7]

3. There Was Probable Cause to Search the Cadillac.[FN3]

When Walker searched the Cadillac at the implied request of Latimer, they both knew that McQuiston was in need of assistance, that McQuiston had hurriedly began a foot chase off the Bruckner Expressway in a specific direction, and that he left his police vehicle on the Expressway with the motor running, the turrets lights on, and the door open. Walker knew from his own observations that the defendant Williams had been caught after the chase and was arrested by McQuiston and brought by him to the area of the Boulevard that was under the Expressway where the cars were standing.

Both Walker and Latimer knew that there were three cars in tandem on the shoulder of the Expressway where the chase started. They knew that in front of the police vehicle on the shoulder of the Expressway was a Cadillac and a Neon. Walker also learned from Latimer that the woman, the defendant Fell, who was behind the Cadillac, had been digging through the front and back seats of that vehicle.

Latimer's implied request that Walker search the Cadillac was also justified by what Latimer saw on the Expressway before Walker arrived. Latimer explained at the hearing that he observed Fell walking on the Expressway and believed that she was going to the police vehicle. However, when he next observed her she was not at the police car but in the Cadillac searching it in a "frantic manner." This, said Latimer at the hearing, was unusual.

The defense challenged the ability of Latimer to see inside the Cadillac by reference to the portion of the tape that does not show any activity inside the vehicle at the time Latimer said Fell was searching it. However, the defense argument does not undercut Latimer's testimony. Latimer was standing at the side of the car when he made his observations, and not directly behind it as the camera was. This difference in position accounts for Latimer's ability to see inside the Cadillac.

Further, the tape does not show activity in the car at any point in these events even though it is clear from the circumstances that there was activity in the car. For example, it is clear that Williams was in the car talking to McQuiston when the car was first stopped, but Williams' presence is not visible on the tape. It is also clear that Fell went to talk to Williams as he sat in the car, but that too is not visible. It is also clear from the tape that, after McQuiston jumped over the guardrail to chase Williams, Fell entered the car numerous times and, while the tape shows her entering the car and at one point coming out of the car holding something, her presence in the vehicle is not seen on the tape. It is clear that, for a variety of possible reasons (the position of the camera, the slope of the back window of the Cadillac, the sun glare), the camera from its position above the windshield of the patrol car did not take images of the inside of the Cadillac. In addition, although the officers did not know at the time of these events what Fell was doing while she was alone on the Expressway with the three cars, the tape shows her entering and leaving the Cadillac on several occasions and her apparent efforts to get the trunk open. The tape corroborated Latimer's testimony that seconds later Fell was inside the car searching it and supports the credibility of Latimer's testimony.

In addition to the observations of Fell's behavior, Latimer reported at the hearing that Fell gave conflicting statements about why she was present at the scene. First she said she was a member of the service and on the job and she had stopped to help McQuiston. Then she said she stopped because the Cadillac was hers. Then, according to Latimer, Fell gave further inconsistent information and started to ramble. She was nervous, and acting erratically.

Based on the information known to Latimer and Walker and because all the officers testified at the hearing there was probable cause to search the car. People v. Rosario, 78 N.Y.2d 583 (1991), cert. denied, 502 U.S. 1109(1992); People v. Havelka, 45 N.Y.2d 636 (1978); People [*8]v. Lypka, 36 N.Y.2d 210 (1975); People v. Gittens, 211 A.D.2d 242, 244-46 (2d Dept.), lv. denied, 87 N.Y.2d 846 (1995).

Further, there was probable cause to believe that there was a weapon in the car. People v. Mundo, 99 N.Y.2d 55 (2002). In Mundo the Court held that a search of a vehicle was proper when the police lawfully attempted to stop the vehicle, the defendant and his companions twice disobeyed the officer's instructions, the vehicle nearly struck a pedestrian, and the defendant tried to "stash" something in the middle area of the rear seat. The Court wrote: "The blatant disregard of the officers' directions, the obvious lack of concern for the safety of others, in addition to defendant's suspicious acts, created a perceptible risk to the officers that a weapon located within the vehicle would be a specific danger to their safety." Id. at 59.

Mundo had its genesis in earlier decisions in People v. Torres, 74 N.Y.2d 224, 226 (1989), and People v. Carvey, 89 N.Y.2d 707 (1997). Mundo explained that in Torres, 74 N.Y.2d at 230 and 231 n.4, the Court had written that a search of a properly stopped vehicle could not be based on an assumption that a person returning to the vehicle will reach for a concealed weapon, but that information revealed during the course of the lawful stop might lead to the conclusion that a weapon in the vehicle presented a specific and actual danger to the officers making the stop and that this newly ascertained danger would justify a search of the vehicle.[FN4]

The Mundo Court went on to explain that it applied this rationale in Carvey. In Carvey the defendant was a passenger in a lawfully stopped vehicle and was seen placing something under the seat. In addition, the officers saw that the defendant was wearing a bullet proof vest. The Court wrote in Carvey that these factors provided "ample evidence to support a finding that the officers could reasonably have concluded that" a weapon in the vehicle was a danger to the officers. Id. at 712. The observations particularly pointed to the possibility of the presence of a weapon in the car.

In Mundo, the Court applied the principle of Torres beyond the facts in Carvey to a situation in which there was a strong possibility that something illegal and dangerous was in the car, and, although the information did not lead to the single conclusion that it was a gun that was likely in the car, it certainly left that as a strong probability. This understanding of Torres and Carvey was first applied by the First Department in People v. Worthy, 261 A.D.2d 277 (1st Dept.), lv. denied, 93 N.Y.2d 1029 (1999), and in its decision in Mundo, 286 A.D.2d 592 (2001) , which was affirmed by the Court of Appeals. After the Court of Appeals' decision in Mundo, the First Department applied the rule again in People v. Norman, 304 A.D.2d 405 (1st Dept.), lv. denied, 100 N.Y.2d 623 (2003), (which considered the totality of the officer's observations including the unusual events surrounding the defendant's entry into a cab suggesting flight rather than haste, and the defendants' furtive movements and uncooperative behavior).

In this case, the information known to Walker and Latimer was more indicative of the presence of a weapon in the car than was the information known in Mundo. They knew that Fell had acted dangerously by walking on an Expressway from the Neon to the Cadillac, that she was at a location from which an arrested person had escaped, that she was present where there was a police vehicle with its motor running and its emergency equipment still engaged, she was seen frantically searching the inside of the Cadillac, she gave inconsistent statements about the reason for her presence on the Expressway, which statements were also inconsistent with her conduct at the location, and she was very nervous. This information provided a basis under Mundo and Norman to search the interior of the Cadillac.

Walker properly expected to drive the Cadillac back to the precinct; there did not appear to be any civilian to drive it away and he could properly search to determine if he was endangered by what was in the car. The defense argued that there was no basis to search the Cadillac because earlier in the incident McQuiston had told Fell that he "supposed" that she [*9]could take the Cadillac if she had a license and proper registration. The defense also referred to the police guide book. However, there is no indication in this record that McQuiston informed other officers of the conversation with Fell.[FN5] In any event, by the time Walker and Latimer were on the scene the circumstances were different from McQuiston's understanding of them. Significant in this evolving set of circumstances was Fell's own behavior.

Walker was properly concerned about the presence of a gun in the car and properly searched the seats in front and back, where Fell was seen. People v. Mundo, 286 A.D.2d at 594. When he found the narcotics in the back armrest, he was allowed to search the remainder of the car. People v. Blasich, 73 NY.2d 673, 681-82 (1989); People v. Martinez, 289 A.D.2d 94 (1st Dept. 2001).

4. The Arrest of Fell Was Proper

The defendant Fell was detained on the Expressway by Latimer until the car was searched. Latimer said that he handcuffed Fell for his own safety and because of the circumstances after she began to ramble and behaved in a nervous fashion. Her detention until the situation could be clarified and more officers were on the scene was proper in light of what Latimer knew to be the circumstances. This detention in no way produced any evidence because the search was conducted based on information independent of whether Fell was handcuffed. Once the car was searched and the narcotics recovered, there was probable cause for Latimer to arrest Fell because she had been in the Cadillac at a time when the drugs were present there and there was probable cause to believe that she had a connection to the car.

5. The Statements Made by Fell were Properly Obtained.

The tape of the interview of Fell by Lieutenant Perry and the testimony at the hearing show the defendant Fell was given her notice of rights and that after speaking she asked for a lawyer and the questioning stopped. Further, Fell was herself a peace officer and can be assumed to be aware of her rights. The defense also argued that admission of the statement was precluded because of the lack of notice pursuant to C.P.L. section 710.30. The record refutes this claim.

6. The Statement by Williams Is Admissible.

The testimony was that Williams was at the precinct and without any questioning made a comment when he saw McQuiston. The testimony of McQuiston is credited. The statement was not the product of any police questioning or conduct.

The motions to suppress are denied in their entirety.

Dated: Bronx, New York

July 2, 2004 ______________________

J.S.C. Footnotes

Footnote 1:Walker testified on February 10, 2004, and was recalled on February 11, 2004 at the defense request after the tape of the events on the Expressway was played. McQuiston's cross-examination was postponed to give the defense the opportunity to question him with the tape.

Footnote 2:Other officers testified it was a Dodge Neon.

Footnote 3:The judge who decided the pretrial motions found that, based on the allegations in the motion, Williams had no standing to challenge the search of the car. This court is bound by that holding.

Footnote 4:The federal law allows such an assumption.

Footnote 5:Indeed, this Court has not used the conversation with McQuiston in deciding the probable cause issue because there is no indication that Latimer and Walker knew about Fell's statements to McQuiston.