People v McGee
Annotate this CaseDecided on June 29, 2007
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Darnell McGee, Defendant.
2006NY047717
Brigid Harrington, Esq.
Assistant District Attorney
New York County District Attorney's Office
One Hogan Place
New York, New York 10013
The Defendant was represented by:
Matthew Goldsmith, Esq.
The Legal Aid Society
49 Thomas Street
New York, New York 10013
Anthony J. Ferrara, J.
The defendant is charged with forcible touching (PL 130.52) and sexual abuse in the third degree (PL 130.55). He has moved to dismiss the count of forcible touching as facially insufficient and to suppress statements made to the arresting police officer, an identification of the defendant by the complaining witness, his cell phone that was recovered from him at the time of his arrest and pictures on the cell phone that were viewed by the police without a search warrant.
The information alleges that on July 17, 2006, at about 9:20 a.m. inside the subway station at the Union Square station, Police Officer Ivan Rodriguez observed the defendant following the complaining witness on the platform and pointing his cell phone at her buttocks. The information further alleges that Officer Rodriguez observed the image of the complaining witness's buttocks on defendant's cell phone screen and that the officer observed the defendant touch and rub the victim's buttocks at least three times with his hands. The Voluntary Disclosure Form ("VDF") filed by the People indicates that the defendant stated in substance to the arresting officer "I didn't touch her," and that a confirmatory identification occurred inside the 42nd Street subway station at approximately 9:10 a.m.
On May 1, 2007, a hearing on the admissibility of this evidence was held before this Court. The People called Police Officer Rodriguez and Police Officer Alexander Bradshaw. The [*2]Court finds the testimony of the police officers to be credible.
FINDINGS OF FACT
Officer Rodriguez testified that he had been a police officer for about two and a half years and that he has made approximately seventy-five arrests (Hearing Transcript, May 1, 2007, pages 13-15). Additionally, as a member of the Transit Bureau, Officer Rodriguez testified that he had received three months of specialized training in identifying pick pockets and people engaged in sexual abuse and forcible touching (Id.).On July 17, 2006, the officer and his partner were in plain clothes and assigned to the Lexington Avenue Subway Line between Union Square and Grand Central Terminal (Hearing Transcript, May 1, 2007, pages 15-16). Officer Rodriguez observed the defendant on the platform at Union Square holding his cell phone out away from his body and pointing the camera at a woman's buttocks while two trains entered and departed the station (Hearing Transcript, May 1, 2007, pages 16-18). Officer Rodriguez then observed the defendant enter a train behind a woman and attempted to push in to her (Hearing Transcript, May 1, 2007, page 19). The woman moved away from the defendant (Hearing Transcript, May 1, 2007, page 19). The officer and his partner exited the train at Grand Central and followed the defendant as he made his way to the downtown platform and returned to the Union Square station (Hearing Transcript, May 1, 2007, pages 19-20). At approximately 9:20 a.m. Officer Rodriguez observed the defendant once again on the platform of the Union Square station looking at women and allegedly video taping the women's buttocks on his cell phone (Hearing Transcript, May 1, 2007, page 20). Officer Rodriguez saw the images of women's buttocks displayed on defendant's cell phone screen (Hearing Transcript, May 1, 2007, page 21). The officer then observed the complainant walk past the defendant, saw the defendant's cell phone displaying images of the complainant's buttocks, and observed the defendant board the train behind her (Hearing Transcript, May 1, 2007, page 21). The defendant pushed into the car behind the woman and both the officer and his partner boarded the same car within ten feet of the defendant (Hearing Transcript, May 1, 2007, page 21). On the train the officer stood next to the defendant and observed him grab the woman's buttocks about four to five times (Hearing Transcript, May 1, 2007, page 22-23). At the Grand Central station after the woman and the defendant exited the subway, Officer Rodriguez spoke with the woman and she agreed to press charges (Hearing Transcript, May 1, 2007, page 23). Officer Rodriguez then walked over to where his partner was speaking with the defendant and the two officers arrested the defendant (Hearing Transcript, May 1, 2007, page 24). As they were placing the handcuffs on the defendant he stated in substance "I didn't touch her. I don't know what you are talking about." (Hearing Transcript, May 1, 2007, page 25). Under cross examination, Officer Rodriguez testified that he did not read Miranda warnings to the defendant at the time of his arrest.
Officer Rodriguez and his partner brought the defendant back to the precinct (Hearing Transcript, May 1, 2007, page 97). After the defendant had been placed in a holding area, Officer Rodriguez inventoried the defendant's belongings including the cell phone (Hearing Transcript, May 1, 2007, page 101). During the inventory process, Officer Rodriguez flipped open the cell phone and examined stored video and still images "expecting to see one of the images that I observed on the platform." (Hearing Transcript, May 1, 2007, page 104). The officer had to progress through approximately five steps to access the video and still images (Hearing Transcript, May 1, 2007, page 116). Officer Rodriguez further testified that this [*3]was his first arrest involving seizure of a cell phone and that he subsequently learned the correct procedure to follow in order to examine images on a cell phone is to obtain a search warrant (Hearing Transcript, May 1, 2007, page 121).
Officer Bradshaw testified that he had been a police officer for about two and a half years and that he has made approximately sixty-five arrests (Hearing Transcript, May 1, 2007, pages 60-62). Additionally, as a member of the Transit Bureau, Officer Bradshaw testified that he had received specialized training in identifying pick pockets and people engaged in sexual abuse and forcible touching (Hearing Transcript, May 1, 2007, page 61).
Officer Bradshaw testified that Officer Rodriguez used a hand signal to indicate that he was observing the defendant with his cell phone out (Hearing Transcript, May 1, 2007, pages 64). Officer Bradshaw boarded the subway at the Union Square station and maintained eye and hand signal contact with Officer Rodriguez until both Officer Rodriguez and the defendant exited the train at the Grand Central station (Hearing Transcript, May 1, 2007, pages 64-68). Officer Bradshaw then stopped the defendant, identified himself as a police officer and asked for identification (Hearing Transcript, May 1, 2007, pages 68). The defendant gave Officer Bradshaw identification and about one minute later, Officer Rodriguez approached and signaled to place the defendant under arrest (Hearing Transcript, May 1, 2007, pages 69). Officer Bradshaw told the defendant to turn around and place his hands behind his back and the defendant asked why he was being arrested (Hearing Transcript, May 1, 2007, pages 69). When Officer Bradshaw answered that he was being arrested for sex abuse, the defendant stated "I didn't touch anybody." (Hearing Transcript, May 1, 2007, pages 70). After this statement, Officer Bradshaw placed handcuffs on the defendant and patted him down (Hearing Transcript, May 1, 2007, pages 71). The officer recovered defendant's cell phone and wallet (Hearing Transcript, May 1, 2007, pages 71). Neither the prosecutor nor defense counsel asked Officer Bradshaw whether he informed the defendant of his Miranda rights.
CONCLUSIONS OF LAW
Motion to Dismiss the count of Forcible Touching
An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL 100.15; CPL 100.40[1][b]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL 100.40[1][c]; People v. Alejandro, 70 NY2d 133, 135 [1987]). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial (see People v Henderson, 92 NY2d 677, 680 [1999]). While the factual allegations of an information must give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive reading (see People v. Casey, 95 NY2d 354, 360 [2000]). When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (see People v. Gonzalez, 184 Misc 2d 262, 708 N.Y.S.2d 564 [App Term, 1st Dept 2000], lv. denied 95 NY2d 835 [2000]). However, conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 [1986]) and a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency (Gonzalez, 184 Misc 2d at 264).
The Court finds the count of forcible touching to be facially sufficient. A person violates [*4]Penal Law 130.52 "when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire." Here, the officer observed the defendant push into and grab the complainant's buttocks multiple times during the subway ride between Union Square and Grand Central. Defendant's motion to dismiss the count of forcible touching is denied (cf. People v. Nuruzzaman, 8 Misc 3d 356 [Crim Ct New York County 2005] [dismissing charge of forcible touching that merely alleged defendant "patted" complainant's buttocks]).
Motion to suppress defendant's statements
The defendant requests that his statements be suppressed since they resulted from a custodial interrogation before he was advised of his Miranda rights. While the Court finds that the defendant was in custody, it concludes that defendant's statements were not in response to police interrogation.
A person is in custody when he or she is deprived of freedom in any significant way or is reasonably led to believe that his or her freedom has been curtailed (see People v Rodney P., 21 NY2d 1 [1967]; People v Balint, 92 AD2d 348 [1st Dept 1983]). The test for custody is what a reasonable person, innocent of any crime, would have thought under the circumstances (see People v Centano, 76 NY2d 837 [1990]; People v Yukl, 25 NY2d 585 [1969]). Here, the credible testimony established that defendant's statements occurred while Officer Bradshaw held the defendant's identification and after the officer informed the defendant that he was under arrest. Under these circumstances no reasonable person would doubt that his or her freedom had been curtailed and the Court finds that the defendant was in custody for the purposes his Miranda rights.
However, for a defendant's Miranda rights to be violated there must also be police interrogation. Interrogation refers not only to questioning but also to any words or actions on the part of the police, other than those normally attendant upon arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect (see Rhode Island v Innis, 446 U.S. 291 [1980]; In re Rennette B., 281 AD2d 78 [1st Dept 2001]). However, not all questioning violates Miranda as courts have held the even investigatory questions asked at the scene of the crime that are designed to "clarify the nature of the situation confronted, rather than to coerce a statement" do not constitute "interrogation" for Miranda purposes (see People v Huffman, 41 NY2d 29 [1976] [officer's single question at the scene when the officer was not engaged in after-the-fact investigation did not constitute interrogation]; People v Chappelle, 189 AD2d 695 [1st Dept 1993] [police at scene asking defendant "what happened" did not rise to the level of interrogation]). Here, the credible testimony established that neither officer asked the defendant any question that prompted the defendant's spontaneous statements. Defendant's motion to suppress his statements is denied.
Motion to suppress the defendant's identification
The VDF filed by the People indicate a confirmatory identification of the defendant occurred at the time of his arrest in the subway station at Grand Central Terminal. Defendant's Omnibus Motion moved to suppress any testimony regarding this identification. The defendant did not raise this issue at the suppression hearing on May 1. 2007. The testimony of the police officers establish that at the identification of the defendant by the complainant at the time of his arrest there was little or no risk of a misidentification because of unduly suggestive actions by [*5]the officers (see People v. Rodriguez, 79 NY2d 445 [1992]). Defendant's motion to suppress identification testimony is denied.
Motion to suppress defendant's cell phone
Defendant moves to suppress his cell phone and its contents because the officers did not have probable cause to arrest him. The Court concludes that, based on the credible testimony, the officers had probable cause to arrest the defendant.
An arrest must be supported by probable cause that a crime has been committed and that the individual to be arrested committed the crime (see People v Carrasquillo, 54 NY2d 248 [1981]). Evidence obtained through the exploitation of an illegal arrest must be suppressed (see Brown v Illinois, 422 U.S. 590 [1975]; Wong Sun v United States, 371 U.S. 471 [1963]). The Court of Appeals defined probable cause as "circumstances that make it at least more probable than not that a crime [has] taken place and the person arrested [is] its perpetrator" (see Carrasquillo, 54 NY2d at 254). The credible testimony established that Officer Rodriguez observed the defendant viewing the complainant's buttocks through his cell phone, push up against her in the subway and repeatedly grab her buttocks. This credible testimony makes it more probable than not that the defendant committed the crimes charged. Accordingly, the Court finds that Defendant's arrest was based upon probable cause. Defendant's motion to suppress his cell phone is denied.
Motion to suppress the pictures on defendant's cell phone
Defendant also asserts that the Officer Rodriguez's viewing of the images on his cell phone violated his constitutional rights because that search, conducted without a warrant, did not fall within any of the recognized exceptions to the warrant requirement. Although conceding that the viewing of the images on the cell phone was an unlawful warrantless search, the People respond that the pictures should not be suppressed under two theories. The first is that Officer's Rodriguez's observations of defendant provide an independent source from which a valid warrant may issue and the second is that the pictures are admissible under the theory of inevitable discovery. Because this Court finds that neither exception to the warrant requirement applies in this case, defendant's motion to suppress any and all images on his cell phone is granted.
The People argue that Officer Rodriguez's observations that the defendant pointed his cell phone at women's buttocks and his observations that he saw the images on the cell phone provide an independent source for the discovery of the images without taint or exploitation of the warrantless search after defendant's arrest. The Court agrees with the People that Officer Rodriguez's observations provided probable cause to support the issuance of a search warrant for the images on defendant's phone. However, this does not provide an independent source permitting the admission of the images against the defendant at trial.
The independent source rule applies to evidence initially discovered during, or as a result of, an illegal search but later obtained through activities untainted by the illegal search (see Murray v. United States, 487 U.S. 533, 537 [1988]). The rationale for the rule is that the "interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation." (see Nix v. Williams, 467 U.S. 431, 443 [1984]). However, "just as the independent source rule does [*6]not automatically immunize prior police misconduct, so the fact that there has been a warrantless search does not invariably require the suppression of evidence later seized pursuant to warrant" (see People v. Burr, 70 NY2d 354, 362 [1987] cert. den., 485 U.S. 989 [1988]; People v. Arnau, 58 NY2d 27 [1982] [holding that the search of defendant's apartment pursuant to a valid search warrant based on information obtained prior to and independent of an illegal entry into the apartment five hours earlier was reasonable and the evidence seized should not be suppressed]). In Burr, the police arrested a murder suspect in his home based upon information from a reliable witness to the crime. While in the home, the police admitted "looking around" defendant's apartment house and observed evidence of the crime including bloody items of clothing (see Burr, 70 NY2d at 358). The following day the police seized various items of evidence in defendant's home pursuant to a search warrant issued based only upon the information from the witness (id. at 358-59). The Court of Appeals affirmed the admission of the evidence and defendant's conviction because the defendant made no claim that the initial search was improperly undertaken to confirm the information in the witness's statement, and there was support in the record for the conclusion that all of the evidence seized pursuant to the search warrant had been observed in plain view (id. at 363). Nor was there any other connection between the police misconduct and the evidence ultimately recovered from the defendant's apartment (id.).
In this case, however, the illegal search occurred during an inventory of defendant's property after his arrest. The request for the issuance of a warrant occurred more than ten months subsequent to the illegal search. Unlike in Burr, Officer Rodriguez admitted at the hearing that he was indeed confirming whether there were captured images on defendant's cell phone, in effect looking for other evidence of the crime (Hearing Transcript, May 1, 2007, page 104). This unwarranted search cannot now be purged of its unlawfulness by relying upon the independent source rule.
The People also argue that the images on defendant's cell phone are admissible under the theory of inevitable discovery. The inevitable discovery doctrine states that the fruits of an unlawful search need not be suppressed where there is "a very high degree of probability that the evidence in question would have been obtained independently of the tainted source" (see People v Payton, 45 NY2d 300, 313, [1978] revd. 445 U.S. 573, on remand 51 NY2d 169 [1980]). This rule is inapplicable where the evidence sought to be suppressed is the very evidence obtained in the illegal search (see People v. Stith, 69 NY2d 313, 318-19 [1987]). Here, the evidence the People seek to introduce is the very evidence discovered by the illegal search.
The Court concludes that the People may not rely upon a hypothetical alternative suggestion that there was probable cause to support a warrant for the search of the images on defendant's cell phone (see People v. Knapp, 52 NY2d 689 [1981]; People v Sommerville, 170 Misc 2d 1024 [Sup Ct Kings County 1996] [suppressing, after a hearing, the contents of defendant's appointment calendar when a police officer, during an inventory of defendant's property, read incriminating entries from the day of the alleged assault]). Defendant's motion to suppress any and all of the images stored on his cell phone is granted.
While suppression of these images precludes the use of the images on the People's direct case, this does not prevent the People from using the images to impeach the defendant's trial testimony. Determination of the proper scope of cross examination is left to the trial judge.
[*7]
Dated:New York, New York
June 29, 2007
______________________________
ANTHONY J. FERRARA
Judge of the Criminal Court
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