People v Mobley

[*1] People v Mobley 2007 NY Slip Op 51315(U) [16 Misc 3d 1106(A)] Decided on June 15, 2007 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2007
Supreme Court, Bronx County

The People of the State of New York,

against

Donald Mobley, Defendant.



49733/05

Richard Lee Price, J.

Defendant was indicted for criminal possession of a weapon in the third degree (Penal Law § 265.02[4]), criminal possession of marijuana in the fourth degree (Penal Law § 221.15) and possession of ammunition (Administrative Code § 10-131[i][3]).

A Dunaway/Mapp/Huntley hearing was held before me on May 15 and 16, 2007. The People called one witness at the hearing: Police Officer Frantz Demorin. No witnesses were called by the defense. I found the People's witness to be credible only to the extent indicated herein.

Findings of Fact

On September 24, 2005, at approximately 11:30 p.m., Police Officer Frantz Demorin of the 47th Precinct was on uniformed patrol with his partner, Police Officer Merritt, traveling southbound on Bronx Boulevard in the Bronx. Officer Demorin was driving the patrol car and his partner was seated in the front passenger seat. As he approached the vicinity of 3308 Bronx Boulevard, Officer Demorin observed a parked vehicle [FN1] with two individuals inside of it. Officer Demorin testified that the neighborhood was a "high prostitution and narcotics" area (H.T. at 17). Officer Demorin pulled up alongside the vehicle, with the passenger side of the patrol car next to the driver's side of the vehicle, and asked the occupants what they were doing and whether they lived in the area. Officer Demorin had this conversation with the occupants "through [his] partner through the other car" (H.T. at 50). Officer Demorin testified that he did not recall "exactly what the answer was" (H.T. at 59).

After making this initial approach and inquiry,[FN2] Officer Demorin and his partner exited their patrol car and approached the vehicle on foot. Officer Demorin testified that they [*2]approached the car on foot "just to make a common inquiry" (H.T. at 19). When asked the nature of this inquiry, Officer Demorin replied, "[a]s to what they were doing in the area, if they lived in the area" (H.T. at 20). Officer Demorin testified further that he made this inquiry "[b]ecause of the nature of the area... it's a high prostitution and drug prone location" (H.T. at 20). He added that he was trying to find out "if any illegal activity was afoot" (H.T. at 20).

Officer Demorin walked around to the passenger side of the vehicle where a female passenger was seated and his partner approached the driver's side. Officer Demorin testified that from where he was positioned on the passenger side of the vehicle, he was able to observe the driver, subsequently identified as the defendant, make a sudden "downward" gesture with his hand (H.T. at 21). Officer Demorin then used his flashlight to look inside the vehicle and observed a firearm on the floor behind the front passenger seat.[FN3] After making this observation, Officer Demorin ordered the female passenger out of the vehicle and directed his partner to place the defendant in handcuffs.

After he was handcuffed, defendant stated that he had been previously shot in the back and needed the gun for protection. He stated that the gun belonged to his father and asked if Officer Demorin could help him out in any way. Defendant's statements were not preceded by Miranda warnings.

Defendant was then placed under arrest and transported to the precinct. After arriving at the precinct, Officer Demorin searched the vehicle and recovered a plastic bag containing marijuana from the back seat.[FN4]

During the second day of his testimony, Officer Demorin acknowledged that he had failed to give the prosecutor a complete copy of his memo book entries after he processed the arrest. He testified that the copy of the third page of the memo book, which was only half full when turned over to the prosecutor, was incomplete because he continued to make entries regarding the arrest after providing copies of his memo book to the prosecutor.

Conclusions of Law

Upon reviewing the hearing testimony and the post-hearing submissions, theCourt concludes that defendant's motion to suppress should be granted since the People did not meet their initial burden of establishing the legality of the police conduct (see People v Berrios, 28 NY2d 361 [1971]).

Where the police initiate an encounter with private citizens, the propriety of that encounter must be assessed under the four-tiered analytical framework articulated in People v De Bour, 40 NY2d 210 [1976] and reaffirmed in People v Hollman, 79 NY2d 181 [1992]). A police approach to a person in a parked car constitutes a level I inquiry (see People v Harrison, 57 NY2d 470 [1992]; People v Thomas, 19 AD3d 32 [1st Dept. 2005], lv denied 5 NY3d 795 [*3][2005]), the least intrusive level of police inquiry under the four-tiered analysis (see People v De Bour, supra at 223). The justification for a level I inquiry is an "objective, credible reason not necessarily indicative of criminality" (People v Hollman, supra; 79 NY2d at 187). Although the informational inquiry is merely a limited intrusion on a citizen's right to privacy, it cannot be used arbitrarily by the police (Kamins, New York Search and Seizure, at 2-7 [2007]). Thus, while the police have "fairly broad authority" to approach and pose questions, they may not do so on mere "whim or caprice"; the request must be based on "some articulable reason sufficient to justify the police action" (People v DeBour, supra at 216).

In this case, the police did not have an articulable reason for approaching defendant's vehicle. The sole basis for approaching the vehicle was the fact that it was parked in a supposedly "high prostitution narcotics" area. A high crime area by itself, however, is not sufficient justification for informational requests (see People v McIntosh, 96 NY2d 521, 525 [2001]). In People v McIntosh, supra, the Court of Appeals observed that "the fact an encounter occurred in a high crime vicinity, without more, has not passed DeBour and Hollman scrutiny" (96 NY2d at 525). The Court noted that a "crucial" consideration was "whether a nexus existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information" (Id.). For example, in People v DeBour, supra, the Court of Appeals held that police officers legitimately approached and inquired about a person's identity where "[t]he encounter *** occurred after midnight in an areas known for its high incidence of drug activity and only after [the individual] had conspicuously crossed the street to avoid walking past the uniformed officers" (40 NY2d at 220)(emphasis added); see also People v Sierra, 83 NY2d 928 [1994][police patrolling neighborhood known as "narcotics supermarket" had objective, credible reason to approach defendant after observing him engage in furtive conduct]).

In the case at bar, however, there was no "nexus" providing a particularized reason to request information from defendant or his front passenger. The car was parked legally and no suspicious activity was observed. Officer Demorin observed no prostitutes in the area on the night of defendant's arrest nor did he observe any behavior indicative of drug activity. Defendant and the front passenger were not engaged in sexual activity. In the absence of any conduct or other basis giving rise to a particularized reason to request information, the initial approach did not meet the DeBour standard for a level I inquiry (see People v McIntosh, supra at 525).Even assuming arguendo that the initial approach was lawful, the officers' decision to exit their vehicle and approach defendant's vehicle on foot is not supported by an objective, credible reason. Officer Demorin was unable to recall how defendant and the front passenger responded to his inquiry during the first encounter when the officers were inside the patrol car. Notably, Officer Demorin did not testify that the occupants refused to respond or that he could not hear their response. He merely testified that he could not recall the response. Thus, there is no basis for concluding that their response was evasive or raised the officers' suspicions (cf., People v Hollman, supra, 79 NY2d at 193 [defendant's denial that he had luggage inconsistent with officer's own observations]; People v Ward, 22 AD3d 368 [1st Dept. 2005], lv denied 6 NY3d 702 [2006][defendant gave highly suspicious answers inconsistent with officer's own observations]; People v McPherson, 286 AD2d 616 [1st Dept. 2001], lv denied 97 NY2d 685 [2001][defendant gave inconsistent and evasive answers in response to officer's request for information]). Since there was no articulable reason for approaching defendant's vehicle a [*4]second time on foot, Officer Demorin's observation of the gun, allegedly in plain view gun on the floor behind the front passenger seat, was not made from a lawful vantage point (cf., Coolidge v New Hampshire, 403 US 443, 446 [1971], reh denied 404 US 874 [1971]). The result of approving the police conduct in this case would be that any person seated in a vehicle parked in a high-crime neighborhood would be subject to indiscriminate police inquiry. Because the police conduct was unlawful in its inception, the gun and marijuana recovered from the vehicle and defendant's statements to the police constitute the fruit of the poisonous tree (see Wong Sun v United States, 371 US 471 [1963]).

In concluding that the People did not meet their initial burden of establishing that the police conduct was lawful, the Court notes that the credibility of their sole witness was significantly undermined during the hearing. Most notably, during Officer Demorin's direct testimony, he inexplicably failed to mention anything about the first encounter with the defendant and front passenger which occurred when he and his partner were still in the patrol car. Officer Demorin's direct testimony that the officers approached on foot to ask the occupants of the vehicle what they were doing and whether they lived in the area is not credible when evaluated in light of his testimony on cross-examination that he made the identical inquiry when he pulled up next to the vehicle. Officer Demorin's credibility was weakened further on his second day of testimony when he testified that defendant's vehicle was a 2005 Pontiac and not a 1998 Honda as he previously claimed. Officer Demorin's explanation for his erroneous testimony, i.e., that his description of the vehicle was based on the license plate number, is also questionable. The inconsistency in Officer Demorin's testimony about whether a voucher was prepared in connection with the inventory search also casts doubt on his credibility. Demorin's reliability as a witness was damaged further by his failure to furnish all of his memo book entries to the prosecutor, as well as his explanation for why only half of the third page of memo book page was photocopied.

A final basis for questioning Officer Demorin's credibility is the obvious tailoring which occurred during his testimony (see People v Garafolo, 44 AD2d 86, 88 [2d Dept. 1974]). For example, Officer Demorin testified that he approached defendant's vehicle "just to make a common inquiry" and to find out "if any illegal activity was afoot" (H.T. at 19, 20). Officer Demorin's apparent attempt to meet constitutional objections must be considered in conjunction with his inexplicable testimony that he asked the identical question during both encounters and his inability to recall what the defendant and front passenger said in response to his inquiry during the first encounter.

Accordingly, defendant's motion to suppress physical evidence and his statements to law enforcement authorities is granted.

This shall constitute the Decision and Order of this Court.

Dated:Bronx, New York

June 15, 2007

ENTER

_________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:On the first day of his testimony, Officer Demorin described the vehicle as a red 1998 Honda Civic. The following day, however, he testified that the vehicle was a 2005 Pontiac and that he did not recall the color. Officer Demorin's explanation for his erroneous description of the car was "[t]hat was the information that I got from the plate in regards to the vehicle" (H.T. at 98).

Footnote 2:During his direct testimony, Officer Demorin neglected to mention that the initial approach and inquiry occurred when the officers were inside the patrol car (H.T. at 18). It was not until the middle of cross-examination that he mentioned the initial encounter (H.T. at 49).

Footnote 3:During cross-examination, Officer Demorin acknowledged that the sworn complaint he signed after defendant's arrest stated that he observed the gun on the back seat (H.T. 55-56).

Footnote 4:During the first day of his testimony, Officer Demorin stated that a voucher was prepared in connection with the inventory search and that the voucher was in the property clerk's office (H.T. at 24, 27). On the second day of testimony, however, Officer Demorin stated that no voucher was prepared because the vehicle was released to a friend of the defendant (H.T. at 71).