People v Powell
Annotate this CaseDecided on June 19, 2007
Nassau Dist Ct
People of the State of New York, Plaintiff
against
Donnie D. Powell, Defendant
NA 06727/07
APPEARANCES:
Honorable Kathleen Rice, District Attorney
240 Old Country Road
Mineola, NY 11501
Christopher Bechtle, Esq.
666 Old Country Road
Garden City, NY 11530
Susan T. Kluewer, J.
Defendant's motion to suppress his statement — "I have a bag of weed in my pocket" — and items of property — a "Ziploc" bag containing 21 smaller "Ziploc" bags of marijuana, and a gravity knife — is granted.
Defendant is accused by information filed under Docket Number 6727/07 of criminal possession of a weapon in the third degree (see Penal Law § 265.02[1]). He is accused by information filed under Docket Number 6728/07 with criminal possession of marijuana in the fifth degree (see Penal Law § 221.10[2]). Both charges arise from an incident that is alleged to have occurred on Grand Avenue in Baldwin, New York on March 15, 2007 at 1:24 a.m. Both cases came on for a stipulated-to, joint hearing on May 23, 2007 to determine whether any evidence should be suppressed on account of an unlawful police intrusion, and, if not, whether Defendant's statement should be suppressed as the product of coercion, threats, or a violation of the procedures set forth in Miranda v. Arizona (see 384 US 436, 444 [1966]). Police Officer James Tobin was the only witness to testify at the hearing. He did so on the People's behalf.
Officer Tobin testified that he was on duty on March 15, 2007 at approximately 1:24 a.m., in uniform in a marked police car, when he pulled into a lot behind Baldwin Billiards on Grande Avenue; that "[w]e have had a lot of problems, so it is a drug-prone and gang-prone location where [I have] made numerous arrests [for drugs, weapons, guns, everything] as well as other officers;" that his windows were "slightly open" when he pulled in; that he observed a red Ford Explorer; that he saw an unknown male black "walk [from the Explorer] in a hurried manner to the rear door of the pool hall;" that, as the man walked away from the Explorer, he (Officer Tobin) saw its lights flash and heard the horn sound, indicating to him that the man locked the Explorer; that he (Officer Tobin) pulled closer to the Explorer; that he saw that two individuals were still sitting inside it; that he thus put his own car in "park;" that he used the spotlight on his police car to illuminate the inside of the Explorer; and that he got out to investigate. He further testified that he approached the passenger side of the Explorer; that he instructed the passenger, via words and hand signals, to roll down the window; that the passenger, whom he identified as Defendant, opened the door; that he thereupon smelled "a strong odor of burning marijuana" [*2]emanating from the Explorer; that he saw Defendant reach behind and shuffle with something; and that he thereupon asked Defendant to step out of the Explorer.
Officer Tobin next testified that he had Defendant step away from the Explorer; that, at the time, Defendant was not under arrest; that his (Officer Tobin's) gun and pepper spray were in their respective holsters; that he asked Defendant if "he had anything on him that he shouldn't have, weapons, drugs, anything like that;" that Defendant indicated that he "had a bag of weed in his jacket;" that he (Officer Tobin) reached in and retrieved the marijuana; that he "continued with a protective pat down search for weapons or anything else that he had on him;" and that as a result he recovered a black handled gravity knife from Defendant's pants pocket. Finally, he testified that he then secured the knife and placed the Defendant in custody.
On cross-examination, Officer Tobin testified that there were no 911 calls or radio runs that prompted him to go the parking lot behind the pool hall; that he thought he observed criminal activity as he approached the Explorer; that that criminal activity consisted of a person walking away from the vehicle in a hurried manner "plus other circumstances that happened in the past led me to believe criminal activity was taking place;" that he detected the odor of burning marijuana "[o]nce [Defendant] opened the door;" that he "never recovered any evidence of burning marijuana;" that an ensuing search of the Explorer by another officer failed to produce a "marijuana roach," bowl, "or any other [marijuana-smoking] apparatus;" that it seemed "weird" to him that the man walking hurriedly toward the pool hall locked the car doors when there were passengers inside; that he observed no violations of the Vehicle and Traffic Law; and that he did not speak to the other passenger in the car, apparently a woman.
When performing a public service function, police have wide latitude in the approach of individuals (see People v. DeBour, 40 NY2d 210, 386 NYS2d 375 [1995]). When, however, police are engaged in their criminal law enforcement function, they cannot approach a citizen to request information on mere whim or caprice, and must do so on account of an articulable basis, that is, on account of an objective, credible reason (id.; see also People v. Hollman, 79 NY2d 181, 581 NYS2d 619 [1992]; People v. Rutledge, 21 AD3d 1125, 804 NYS2d 321 [2d Dept. 2005]). It appears that approach of a citizen for information who happens to be seated in a lawfully parked car is akin to an approach of a pedestrian for that purpose, and thus the articulable basis for the approach need not necessarily be indicative of criminality (see People v. DeBour, supra ; see also People v. Harrison, 57 NY2d 470, 457 NYS2d 199 [1982]). But no level of police intrusion is [*3]justified by after-acquired information, just as a search may not be justified by its fruits (People v. DeBour, supra ). This is so even where the encounter takes place in a "high crime" area (see People v. Rutledge, supra ; see also People v. McIntosh, 96 NY2d 521, 730 NYS2d 265 [2001).
The People in this case urged at the conclusion of the hearing that Officer Tobin's approach of the Explorer was lawful because he undertook it "to make sure everything was okay." The evidence does not support this argument. Officer Tobin expressed no concern for the safety of the passengers he saw seated in the Explorer, and there is nothing to indicate that he should have had such a concern. Indeed, Officer Tobin testified that he made the approach because he thought he observed criminal activity. Prior incidents of criminality at a particular location, however, do not alone justify any level of intrusion (see People v. McIntosh, supra ; People v. Rutledge). And Officer Tobin was entitled to approach the occupants of the Explorer to "request information" only if he had an objective, credible reason for doing so (see People v. Hollman, supra ). I cannot agree with the unmade assertions that a man walking "in a hurried manner" toward a public establishment — a lawful activity — and that pressing a button on a key that locks the door of the vehicle he was leaving — an activity that Officer Tobin testified he viewed as "weird" but that to others may be nothing more that a reflex action — justifies intruding on the occupants of that vehicle (see People v. Rutledge, supra ). And because there was no basis for the initial intrusion (id.), all ensuing evidence must be suppressed (see e.g. Wong v. United States, 371 US 471 [1963]; People v. Cantor, 36 NY2d 106, 365 NYS2d 509 [1975]). Because of this determination, I do not reach the other issues presented at the hearing.
This constitutes the decision and order of the Court.
So Ordered.
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