People v Eddo

[*1] People v Eddo 2004 NY Slip Op 51569(U) Decided on June 30, 2004 Supreme Court, Kings County Hall, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2004
Supreme Court, Kings County

People of the State of New York,

against

Oladipo Eddo, Defendant.



8398/02

L. Priscilla Hall, J.

Defendant is charged in an indictment, inter alia, with Criminal Possession of a Weapon in the Third Degree. Defendant, claiming to be aggrieved by an unlawful arrest, moves to suppress marijuana and a gun that were recovered from his vehicle and to suppress a statement made to Detective Bush during the course of his arrest.[FN1]

A Dunaway/Huntley/Mapp hearing was held before this court from March 29, 2004 to March 31, 2004, and Detective Robert Bush, Shield Number 1875 of the Brooklyn South Homicide Unit and Police Officer Eric Calleja, Shield Number 9482 of the 61st Precinct, testified for the People. The defendant did not call any witnesses on his behalf.

Based on the credible evidence adduced at the hearing, defendant's memorandum of law, dated April 14, 2004, the People's response, dated January 9, 2003 [FN2] and defendant's reply memorandum, dated May 6, 2004, this court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

On November 25, 2002 at approximately 2:23 p.m., Police Officer Calleja and his partner John Obanhein, received a radio transmission that a male black with a gun, wearing a light blue sweatsuit was in a green Sedan with out-of state plates or a Virginia license plate was at the Windjammer Hotel, located at 3206 Emmons Avenue, in Brooklyn.[FN3] Officer Calleja arrived at the [*2]location, within minutes after having received the call.

When he arrived, Officer Calleja observed a green Pontiac Grand Prix with tinted windows and a Texas license plate leaving the hotel. As the green vehicle passed the officer's car, the driver called to the officer and said, "What's up, Officer?" Officer Calleja noticed that the driver was a male black wearing a light blue sweat jacket. Believing that the caller may have misidentified the out-of-state license plate, Officer Calleja made a U-Turn and followed the Pontiac onto the Belt Parkway.

After driving for about a mile on the Parkway, at 2:30 p.m., the police turned on their turret lights and siren, and directed the Pontiac to stop. With guns drawn, Officer Obanhein went to the driver's side and pulled the defendant from the vehicle, while Officer Calleja pulled a passenger from the passenger's side. As he was removing the first passenger, Officer Calleja was surprised to see a third person in the vehicle, whom he had not previously observed because the car's windows were tinted. As the third person began exiting the vehicle, the seat moved, and Officer Calleja observed a shiny object that he thought was a gun. The shiny object was actually a block of marijuana. The marijuana was wrapped in a foot long plastic bag with all the air sucked out. At 2:51 p.m., the defendant and the two passengers were arrested and taken to the 61st Precinct.

While at the precinct, and during the course of the arrest processing procedure, Officer Calleja recovered a vial of marijuana from defendant's front pocket. The People are not seeking to introduce this vial of marijuana during their case in chief. It is not therefore, a subject of this hearing.

At approximately 4:30 p.m., Darlon Jones, the passenger who had been seated in the back seat, asked to speak with Officer Calleja. Jones stated, among other things, that a gun was hidden in the car, under the cup holder where the stick shift is located. The officer went to the Pontiac, which was parked in the rear parking lot of the 61st Precinct, removed the cup holder from its moorings and recovered a loaded forty caliber Baretta handgun.

Sometime during the defendant's presence at the police station, the police learned that the defendant was wanted for questioning with regard to a homicide within the confines of the 67th Precinct. The defendant was then transported to the 67th Precinct.

On November 26, 2002, at approximately 11:40 a.m., the defendant was questioned in the interview room of the 67 Squad by Detective Robert Bush about the homicide. The interview room has one window, a door, some chairs and a table, and the defendant was handcuffed to a bar along the wall.

When he entered the room, Detective Bush introduced himself and Detective Massey, and explained why they were there. Detective Bush read defendant the Miranda warnings from a card that was introduced into evidence as People's Exhibit Number 1. After each question, the defendant answered "yes" and wrote the word "yes" in the space on the card following the question. The defendant signed the bottom of the Miranda card and Detective Bush wrote the date and time on the card. [*3]

Detective Bush then proceeded to question the defendant about the killing of Castil Hamilton. After questioning defendant about the homicide, Bush then asked the defendant about the gun. Specifically, Bush asked the defendant where he got the gun from. The defendant told the Detective that he stole the gun from a Chinese guy in Texas, stored it under a trap door in the console of his car, checked into a hotel and left it under a pillow in his room. He later returned to the hotel room to retrieve the gun, and thought the housekeeper may have called the police.

During the interview, which lasted approximately forty-five minutes to an hour, the defendant appeared to understand English, and did not appear to be under the influence of drugs or alcohol. The defendant did not request an attorney and appeared alert and willing to speak.

At 9:49 p.m., the defendant provided a video taped statement to the District Attorney's Office, and Detectives Bush and Massey were present during the interview. Defendant said he did not want to answer any questions about the gun.

Between 11:40 a.m. and 9:50 p.m., the defendant was kept in the interview room for part of the time and spent some time in the cell. Defendant was fed and given something to drink.

CONCLUSIONS OF LAW

The Stop of Defendant's CarThe stop of an automobile traveling on a public street constitutes a "seizure" subject to constitutional limitations. People v. Spencer, 84 NY2d 749; People v. Ingle, 36 NY2d 413. Thus, the Constitution requires that the police have reasonable suspicion that the driver or an occupant has committed, is committing or is about to commit a crime to justify a car stop.

"Reasonable suspicion is that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe that criminal activity is at hand. People v. Spencer, 84 NY2d 749; People v. Martinez, 80 NY2d 444, 448; People v. DeBour, 40 NY2d 210. Once a vehicle is legally stopped, the police may open the doors to the motor vehicle and order the driver and all passengers out of the car. People v. Robinson, 74 NY2d 77; People v. David L., 56 NY2d 698.

Based on the evidence adduced at the hearing, this court finds that the police lacked reasonable suspicion to stop defendant's car.

The record reflects that the police received a radio call reporting that a black man with a gun, wearing a blue sweat suit was in a green Sedan with an out-of-state or Virginia license plate in the area near the Windjammer Hotel. Within minutes, the officers arrived at the location and observed a male black wearing a blue sweat suit, driving a green Pontiac Grand Prix with a Texas license plate leaving the hotel. Acting on the report alone, the officers followed the defendant's car for approximately one mile, before turning on the turret lights and siren and stopping defendant's vehicle. The officers did not observe any actions indicative of criminal activity prior to the stop.

The People assert that a 911 call providing information of a man with a gun, provides reasonable suspicion to justify a stop. People v. Olsen, 93 AD2d 824). However, this assertion must be reevaluated in light of a recent case decided by the United States Supreme Court.

In Florida v. J.L., 529 U.S. 266, 272, the Supreme Court held that a stop conducted on the basis of an anonymous report that a black man at a bus stop, wearing a plaid shirt, had a gun, lacked sufficient indicia of reliability to establish reasonable suspicion. This information, according to the court, constituted "the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had information about the [*4]defendant." While the Supreme Court acknowledged that an anonymous report which included sufficient "indicia of reliability" could serve as the basis for a stop, the Supreme Court gave weight to the fact that the report in J.L., and as is the case here, did not show that the caller had knowledge of concealed criminal activity." Id. at 272. Furthermore, the anonymous report in J.L., furnished no "predictive information" concerning the suspect's movements. In reaching its determination, the Supreme Court rejected the State's argument that reasonable suspicion existed because the description of the suspect's visible attributes reported by the caller proved accurate. J.L. at 271.

Similarly, in the instant case, this court concludes that the caller's description of a black man wearing a blue sweat suit in a green car is not a sufficient basis upon which to stop defendant's vehicle. See also, United States v. Hernandez, 2003 U.S. App. LEXIS 6988 (finding that a description of a Puerto Rican man with a gun at a specific location, in a gray four door Nissan, being driven by a woman, heading south on West Street did not have sufficient indicia of reliability to justify a stop of defendant's car).

For all the foregoing reasons, this court finds that the stop was not supported by reasonable suspicion and was therefore, illegal.

Defendant's Arrest

When a defendant challenges the legality of his arrest, the prosecution bears the burden of establishing that there was probable cause for defendant's arrest. Dunaway v. New York, 442 U.S. 200; Brown v. Illinois, 422 U.S. 690. Probable cause does not require proof beyond a reasonable doubt, but merely information which would lead a reasonable person who possesses the same expertise as the officers to conclude, under the circumstances, that a crime is being or was committed and that the defendant is the person who committed it. People v. Hartmen, 294 AD2d 446. Once the burden is met, it shifts to the defendant to show, by a preponderance of the evidence, that the arrest was in violation of his rights.

As noted supra, defendant's car was unlawfully stopped, and defendant has satisfied his burden in establishing that his subsequent arrest was in violation of his rights.

The Admissibility of the Evidence (Marijuana)

When a defendant seeks to suppress physical evidence, the burden is on the People to show the legality of the police conduct. Once met, the defendant bears the burden, by a preponderance of the evidence, to show that his Fourth Amendment right to be free from an unreasonable search and seizure has been violated.

A warrantless search and seizure is presumed to be unreasonable, subject to a few specifically established and well delineated exceptions, (establishing the plain view doctrine as one of the exceptions for a warrantless search).

Under the plain view doctrine, a warrantless seizure is justified if the police, while standing in a lawful place, are able to view an instrumentality of crime. The incriminating nature of the object must be immediately apparent, thus giving the police probable cause to seize the item. People v. Diaz, 81 NY2d 106, 110. [*5]

The People have failed to satisfy even the first prong of this test.

In order for the plain view exception to apply, the officer must be in a lawful place. Here, Officer Calleja testified that while removing the passenger from the back seat of the car, the seat moved. He then observed a shiny object that he believed to be a gun, but later discovered was a block of marijuana, wrapped in a foot-long plastic bag. Since the stop was unlawful, the officer's observations were made in turn, from an unlawful vantage point. Because the plain view doctrine does not remove the taint of the illegal stop, the marijuana, although observed in plain view, is inadmissible as the fruit of the poisonous tree.

For these reasons, the marijuana recovered from the car is inadmissible.

Admissibility of the Gun

The defendant claims that the gun should be suppressed, because the statement made by Darlon Jones, two hours after the arrest, should not be considered an intervening event, sufficient to attenuate or dissipate the taint of the illegal arrest.

Not all evidence or leads to evidence which come to light because of some prior illegal act by law enforcement officials is legally suppressible under the "poisonous tree" doctrine. Rather, facts which are obtained subsequent to an illegal detention may be admissible, if they are revealed by independent sources. Silverthorne Lbr. Co., v. United States, 251 U.S. 385. Additionally, the causal connection between the unlawful conduct and the police discovery of the challenged evidence may have become so attenuated as to dissipate the taint. Wong Sun v. United States, 371 U.S. 471.

In determining whether the gun obtained after an illegal arrest is admissible, it is necessary to consider three factors: (1) the time interval between the illegal arrest and the [seizure of the gun]; (2) the presence or absence of intervening factors and (3) the purpose and flagrancy of the official misconduct. People v. Herner, 212 AD2d 1042, 1044; Brown v. Illinois, 422 U.S. 590, 603-604.

Here, the record reveals the presence of an intervening circumstance. At 4:30 P.M., while in the holding cell at the 61st Precinct, Darlon Jones, who had been a passenger in the car when defendant's vehicle was stopped, told Officer Calleja that he knew where a gun was located inside the car. Officer Calleja escorted Jones to the car, and Jones indicated where in the car the gun could be found. As directed by Jones, Calleja removed the cup holder from its moorings and recovered the gun.

Clearly, Jones' statement was an "intervening event" sufficient to break the causal chain between the illegal stop and seizure of the gun, and the evidence was "independently obtained" as a result of Jones' statement.

Although defendant seeks to challenge the court's reliance on Jones' statement on the grounds that it was obtained in the absence of Miranda, the record is devoid of any evidence that Jones' statement was the result of police prompting. In any event, even if Jones' statement was not voluntarily made, as this court determined at the hearing, defendant lacks standing to assert any constitutional claims on Jones' behalf. [*6]

With regard to the second prong of the test, the facts of this case indicate that there was no flagrant police misconduct. Prior to the Supreme Court's decision in Florida v. J.L., supra, the law of this State consistently held that a stop based on information received from an anonymous call, which included sufficient "indicia of reliability" provided reasonable suspicion to justify a stop. People v. Olsen, 93 AD2d 824.

Here, the unidentified caller described defendant's race, the color of his clothing and what he was wearing, his location, the color of his car, the out-of state license plates, the location where the car and the defendant could be found, and the crime he was committing. Prior to the United States Supreme Court decision in J.L., the officers, who responded to the scene within minutes, would have had reasonable suspicion to stop the vehicle. Although in error, this court finds that the police action in stopping defendant's vehicle, was not flagrant misconduct.

Finally, this court considers the interval of time between the illegal detention and the seizure of the gun. While courts have held that two hours is sufficient to make a finding of attenuation, even in those cases, the court has held that the mere passage of time is not enough, but has instead looked closely at all the factors to determine whether the arrest had been fully attenuated. See People v. Herner, 212 AD2d 1042 (holding that a two hour interval was appropriate to avoid suppression, because defendant had received Miranda warnings, had been implicated in the crime, and there was no flagrant police conduct).

In the instant case, this court has considered all of the factors, and concludes that the seizure of the gun by the police was sufficiently attenuated from the illegality of the arrest and is admissible.

This court next addresses defendant's claim that a search of the vehicle was unlawful, since exigent circumstances did not exist to justify a warrantless search.

The record reveals that the car was parked in the precinct parking lot, and that defendant, who was in custody at the time, had no access to the locked vehicle. It is therefore evident, defendant contends, that there existed no threat that he could either remove or destroy the evidence.

Nevertheless, it has been routinely held that the automobile exception has no separate requirement of exigency. Maryland v. Dyson, 527 U.S. 465; Pennsylvania v. Labron, 518 U.S. 938. Moreover, the fact that defendant's arrest was supported by probable cause further provides for he constitutionality of the search. Once the police established that there existed probable cause to arrest defendant and to search the car, a search warrant was not required. Chambers v. Maroney, 399 U.S. 42; United States v. Williams, 181 F. Supp. 2d 267; People v. Orlando, 56 NY2d 441. It is of no consequence that the police had already secured the vehicle and could have waited until a warrant had been obtained, (Chambers v. Maroney, 399 U.S. 42). Jones' statement, together with the fact that the police were responding to a call of a man with a gun, gave the police probable cause to believe that a gun would be found in the car, which in turn, gave the police probable cause to conduct a warrantless search of the vehicle.

For all the foregoing reasons, defendant's motion to suppress the gun is denied.

The Admissibility of Defendant's Statement

The defendant contends that his statement made to Detective Bush at the 67 Precinct about the gun, should be suppressed, because the police deliberately delayed his arraignment so that he could be questioned outside the presence of counsel about an unrelated homicide. Criminal [*7]Procedure Law section 140.20 requires that: upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties in the particular case, must without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question (emphasis added).

"As a general rule, an unnecessary delay in arraignment, without more, does not cause the accused's critical stage right to counsel to attach automatically and absent extraordinary circumstances, a delay in arraignment is but one factor to consider in assessing the voluntariness of a confession.'" People v. McFadden, 261 AD2d 417, 418; People v. White, 259 AD2d 508; quoting People v. Mosely, 135 AD2d 662, 663-664. Even where a delay can be considered a suspect circumstance, "it is not necessary to conclude that the delay in and of itself required the suppression of the statement." People v. Marinelli, 238 AD2d 525, 526 (citations omitted).

Here, the record reflects that the delay in defendant's arraignment was due to police questioning defendant about his possible involvement in an unrelated crime, and was not strategically delayed so that he could be questioned outside the presence of counsel. Thus, a delay in arraignment was warranted. See People v. Beale, 283 AD2d 653; People v. Faison, 265 AD2d 422; People v. Marshall, 244 AD2d 508 (defendant being held in custody for more than 20 hours before arraignment due to investigation of defendant's possible involvement in unrelated crimes); People v. Marinelli, 238 AD2d at 526.

The only issue remaining before this court is whether defendant's statement was voluntary. This court concludes that it was.

Before being taken to the 67th Precinct, defendant was fed and given something to drink. While at the 67th Precinct, he was read the Miranda warnings from a card, and defendant answered "yes" and wrote the word "yes" in the space on the card following each question. The interview lasted approximately forty-five minutes to an hour, and defendant, who appeared to understand English, and was not under the influence of either drugs or alcohol, signed the bottom of the Miranda card. Detective Bush then wrote the date and time on the card as well.

There is no evidence that defendant's statement about the gun was anything other than voluntary, and that the delay from arrest to arraignment was longer than reasonably necessary to complete the investigation or resulted in a violation of defendant's constitutional rights.

Accordingly, this court concludes that defendant's statement is admissible.

This constitutes the decision, order and opinion of this court.

______________________

J.S.C.

Footnotes

Footnote 1: The People do not seek to introduce the second statement made by the defendant to Detective Bush or the videotaped statement made by the defendant to the Assistant District Attorney.

Footnote 2: The People have mistakenly dated their papers January 9, 2003.

Footnote 3:This court has examined a copy of the Sprint report, which identifies the caller by name and telephone number. However, the Sprint report was not introduced into evidence, nor was there any testimony elicited during the course of the hearing, concerning the caller's identity. In rendering a decision, this court refers to the caller as "unidentified," when in fact, his identity is know to the People and a copy of the Sprint report was produced to defense counsel during the course of discovery. Perhaps, if the People had introduced evidence concerning the caller's identity, this court may have reached a different conclusion.