People v Jones
Annotate this CaseDecided on November 30, 2004
Supreme Court, Bronx County
THE PEOPLE OF THE STATE OF NEW YORK
against
LARRY JONES, Defendant.
6239/02
Joseph Fisch, J.
The defendant, indicted for Criminal Possession of a Controlled Substance in the Third degree and related charges, moves to suppress physical evidence. Upon the evidence adduced at the pretrial Mapp hearing, the motion to suppress is denied.
FINDINGS OF FACT
The People called two witnesses, Police Officers Agah Durudogan and Joaquin Rivera, whom the Court finds credible and reliable. The defense did not call any witnesses.
On November 16, 2002, Officers Durudogan and Rivera, assigned to the 50th precinct, were on patrol, in uniform in a marked patrol car, in the vicinity of 230th Street and Broadway, Bronx, New York, when they received a series of radio transmissions involving a recent shooting. The first transmission, received at approximately 3:20 a.m., advised of a shooting in the vicinity of 147 West 230th Street. A few minutes later, a second transmission provided a description of two male blacks and a female black wearing dark clothing running westbound on 230th Street. Upon receiving this information, the officers began to canvass the area for the individuals fitting this description, noting that there were no pedestrians on the street when they received these transmissions.
As the officers began to canvass in what they recognized as a high crime area, they turned southbound on Bailey Avenue, proceeding toward 225th Street, finally turning on to Exterior Street. They did not observe any pedestrians as they traveled these streets. They arrived at the intersection of Exterior Street, Broadway and 230th Street, and as they were parking their patrol car, they received a third radio transmission, confirming that a male had been shot. The officers began to canvass on foot, walking along Broadway until they entered the plaza of the Marble Hill Housing projects, which projects were located along the path of flight the alleged perpetrators had taken. In the plaza, the officers observed, for the first time since the initial transmission, several people, none of whom fit the description they received. At approximately 3:40 a.m., the suspects had not yet been apprehended so the officers returned to their marked patrol car to continue with the investigation.
As they proceeded on Broadway, Durudogan observed a male black, approximately 25 feet [*2]away, wearing dark clothing, carrying a plastic bag, coming from the direction of the shooting location. The male, later identified as the defendant, Larry Jones walked towards the uniformed officers and upon making eye contact with Durudogan, the defendant turned and fled in the opposite direction. The officers pursued the defendant as he ran to Exterior Street where he ducked and ran behind parked cars, eventually standing upright with a bag, which appeared bulky and heavy, clenched in his fist. As the officers stopped the defendant, Officer Rivera, believing and concerned that the bag may contain a weapon, removed it from defendant's hand and threw it aside, whereupon the officers then frisked the defendant. The bag, a two handled plastic grocery bag, was open on the ground when Rivera observed clothing with glassines of crack-cocaine on top. Upon further inspection, Rivera discovered the bag contained a total of 80 glassines of crack-cocaine. The defendant was then placed under arrest.
CONCLUSIONS OF LAW
The determination of probable cause must be based upon an examination of all of the credible evidence presented. The initial burden is on the People to put forth credible evidence to establish that the defendant's arrest was based upon probable cause. The People must establish the legality of the police conduct which led to the recovery of the property. People v. Whitfield, 178 AD2d 334, 336 (1st Dept. 1991) rev. on other grounds, 81 NY2d 904 (1993). The People have met their burden. The ultimate burden is then with the defense to show, by a preponderance of the evidence that there was insufficient information to demonstrate probable cause and as such the conduct of the police was illegal, requiring suppression of any physical evidence recovered from the defendant. People v. Berrios, 28 NY2d 361, (1971). The defense has failed to meet its burden in the instant case.
Police citizen encounters are analyzed on many different levels, each requiring different degrees of information to justify the encounter. These encounters range from a minimal intrusion of a right to request information to probable cause to make an arrest. In order for a police officer to approach a citizen, he must have an objective credible reason for his actions, which is not necessarily indicative of criminality. The officer must be able to give a specific articulable reason for his approach. An analysis must then be made of the knowledge possessed at that moment of approach and any reasonable inferences that may be drawn, based upon that knowledge. People v. De Bour, 40 NY2d 210, 215 (1976). A greater intrusion is permissible when there is a founded suspicion that criminal activity is afoot. People v. Cantor, 36 NY2d 106, 111 (1975), People v. Rosemond, 26 NY2d 101 (1970). Both forcible stops and pursuits require the same degree of information to justify the police conduct. People v. Martinez, 80 NY2d 444 (1992). The Court of Appeals has held that "the police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed." Martinez at 80 NY2d at 447 citing People v. Leung, 68 NY2d 734, 736 (1986), People v. De Bour, 40 NY2d at 223, People v. May, 81 NY2d 725 (1992). Reasonable suspicion has been defined by the Court of Appeals as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man 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 the intrusion. Vague or unparticularized hunches will not suffice." People v. Martinez, 80 NY2d at 448 citing People v. Cantor, 36 NY2d 106, 112-113. The officers must possess a reasonable suspicion that the defendant has committed a crime in order to justify their pursuit. The immediate flight of [*3]a suspect, who fits a general description, upon making eye contact with the police, has been held sufficient to establish the requisite reasonable suspicion that defendant has committed a crime and thereby justifies their pursuit and forcible stop. See, People v. Montilla, 268 AD2d 270, (1st Dept. 2000), People v. Wright, 257 AD2d 365, (1st Dept. 1999), People v. Lipsey, 247 AD2d 2246, (1st Dept. 1998), People v Acevedo, 222 AD2d 217 (1st Dept., 1995). "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed." De Bour 40 NY2d at 223; See Criminal Procedure Law §140.50.
In order to determine if the police action was justified a court will analyze the surrounding circumstances in which the action takes place. The criterion upon which the propriety of the police conduct will be judged is reasonableness. The police conduct must be reasonably related in scope and intensity to the level of information available to the officers at the time they took the action. People v. Cantor, 36 NY2d at 111. It is the totality of the circumstances surrounding the encounter that will ultimately determine whether or not it was justified.
Defense contends the apprehension of the defendant did not occur within close spatial and temporal proximity to the location of the shooting, and therefore, the actions of the police were not justified. Defendant argues that the passage of approximately 45 minutes between the initial transmission and the apprehension of the defendant does not constitute close temporal proximity and that the stop is not within spatial proximity because of the large distance between the crime scene and the apprehension. However, as demonstrated by the evidence adduced at the hearing this was a continuous, ongoing investigation in which the shooting suspects had not been apprehended, and when the defendant, who fit the general description, made eye contact with the uniformed officer, he turned and fled in the opposite direction. A showup identification procedure, in which the defendant was not identified, was conducted shortly after his apprehension.
There is no bright line rule to determine the timeliness of temporal proximity. "The limits of appropriate time period between crime and showup may vary from case to case." People v. Johnson, 81 NY2d 828, 831 (1993). In order to determine what constitutes close temporal proximity, the court must analyze the specific facts of each case. See, People v. Brisco, 292 AD2d 626, (2002), (showup within one hour of commission of crime, during a continuous ongoing investigation was reasonable under the circumstances), People v. Rodney, 237 AD2d 541, (1997), (identification 40 minutes after robbery, approximately 7 blocks from crime scene was permissible), People v. Thompson, 215 AD2d 604, (1995), (identification within one hour of commission of crime not unduly suggestive.), People v. West, 128 AD2d 570, (1987), (showup within 1-1 1/2 hours was permissible).
Our analysis must begin with the initial police encounter between the officers and defendant, to determine if the police action was justified at its inception. The officers had received several transmissions, in which it was confirmed that a male had been shot. They began their investigation by canvassing an area, which constituted an avenue of escape based upon the direction of flight that was transmitted and was in close spatial proximity to the location of the confirmed shooting. They were looking for three individuals, believed to be armed. As they began their canvass in the early morning hours they did not see any pedestrians, fitting the description or otherwise, on any of the streets they traveled until they encountered the defendant walking on Broadway. Durodugan first observed defendant, a black male, wearing dark clothing walking towards him as he was returning [*4]to his patrol car. As Durodugan, a uniformed officer, and defendant made eye contact, the defendant turned away from the officers and began to run. The officers pursued the defendant, ultimately stopping him a short distance away after he ducked behind a parked car.
The defendant's actions, making eye contact with the uniformed officer, halting his approach and fleeing in the opposite direction coupled with the continuous investigation of a confirmed shooting in which the suspects had not yet been apprehended gave rise to the officers reasonable suspicion that the defendant had committed a crime. Additionally, the defendant, who fit the general description was the only pedestrian on the street at approximately 3:40 a.m., in a high crime area, immediately fled upon eye contact, thereby justifying their pursuit. Rivera testified he had his weapon drawn as he approached the defendant who had ducked behind parked cars and then stood upright clenching a bag which appeared heavy enough to contain a weapon. As the Court of Appeals noted in People v. Benjamin, 51 NY2d 267,271 (Ct. App. 1980),when officers are conducting an investigation involving violent crimes and dangerous weapons, "It would, indeed be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety." See also, People v. Allen, 73 NY2d 378, 380 (Ct. App. 1989). Rivera's approach with his weapon drawn was justified based upon the information in the radio transmissions of a confirmed shooting and the fact that the suspects who were potentially armed with weapons had not yet been apprehended.
Defendant further contends the physical evidence recovered should be suppressed since the police were not justified in their search of defendant's bag. Once the two-handled plastic bag was on the ground away from the defendant, Officer Rivera could see inside it, without opening the bag. In plain view he observed glassines of crack-cocaine, and after such observation the bag was searched and additional evidence was recovered.
Probable cause to search the bag was established under the plain view doctrine, which permits the seizure of evidence, believed to be the instrumentality of a crime without a warrant. In order to qualify for the plain view exception to the search warrant requirement the following three conditions must be satisfied: 1) the officer must lawfully have a right to be where he is when the observation is made, 2) the police have lawful access to the object, 3) the incriminating nature of the evidence must be immediately apparent. People v. Diaz, 81 NY2d 106 (1993), People v. Brown, 96 NY2d 80, 88 (2001), People v. Polanco, 292 AD2d 29, 31 (2002).
In the instant matter, since the officers were justified in pursuing the defendant, clearly they were at a lawful vantage point when the glassines were observed in the open bag. Based upon the officers training and experience the incriminating nature of the item was immediately apparent and the officer had lawful access to the evidence which was found in an open bag which Rivera, believing it might contain a weapon, had placed on a public sidewalk for safety purposes. Since probable cause was established based upon this legally permissible plain view observation, the subsequent search of the bag was proper and as such the evidence is admissible.
The motion to suppress is DENIED.
The foregoing shall constitute the decision and order of the court. [*5]
Dated: November 30, 2004
Honorable Joseph Fisch
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