People v Murrell
Annotate this CaseDecided on February 20, 2008
Supreme Court, New York County
The People of the State of New York,
against
Terrence Murrell, Defendant.
0104/07
counsel for the defendant: David Segal
assistant district attorney: Claudine Caracciolo
A. Kirke Bartley, J.
The defendant is charged with Criminal Possession of a Controlled Substance in the First Degree and Criminal Possession of a Controlled Substance in the Third Degree. He moves to suppress cocaine which he discarded while being pursued by the police. The defendant contends that the police pursuit was unjustified and that discarding the bag was a spontaneous reaction to that unlawful police interference. The People contend that the police were justified in pursuing the defendant and that the defendant voluntarily abandoned the cocaine when he threw the bag over the fence during the pursuit.
At a Mapp hearing held on January 8, 2008, Police Officers Nicholas Mansfield and Byron Pena testified credibly for the People; the defendant presented no witnesses. Both sides thereafter submitted memoranda of law. Based upon the following findings of fact and conclusions of law, the defendant's motion to suppress the cocaine is granted.
Findings of Fact
Police Officers Nicholas Mansfield and Byron Pena were both patrol officers assigned to the 32nd Precinct on January 1, 2007. On that date Officer Mansfield was in uniform and was the passenger in a marked police vehicle driven by his partner, Officer Rizzo. At approximately 2:45 p.m., Officer Mansfield received a radio run that there was an assault in progress in an apartment inside of 60 West 142nd Street. The officer described 60 West 142nd Street as an apartment building within a large complex that has approximately twenty floors with dual entrances on two sides of the building. Officer Mansfield testified that the radio run provided no descriptions, did not indicate whether the alleged perpetrator was a male or female, or whether a weapon was used.
When Officer Mansfield and his partner approached one of the entrances of 60 West 142nd Street, he saw two men walking out of the building. The officer did not know whether the two men were together. The defendant was the first of the two men to exit the [*2]building and he was carrying a red Macy's shopping bag. As Officer Mansfield exited the vehicle, the officer's stated purpose at that time was to attempt "to get into the apartment, or ask whoever was nearby what was going on" (Tr. 9). The officer approached the defendant to see "if he knew what was going on, or maybe if he had keys to the building, or something of that nature" (Tr. 31), but before the officer said anything to him, the defendant fled northbound on Chisolm Place. The officer had approached to about 10 feet of the defendant when the defendant fled. The other man who had exited the building did not run, but simply stood in front of the building. Neither Officer Mansfield nor Officer Rizzo ever spoke to that individual.
When the defendant fled, Officer Mansfield immediately transmitted the defendant's description over the police radio and chased him on foot. Officer Rizzo also chased the defendant. While the officers were pursuing the defendant, Officer Mansfield observed the defendant throw the bag over a fence into a parking lot as he ran toward 142nd Street. According to the officer, the defendant discarded the bag about five or ten seconds after he started running. The entire chase lasted approximately 40 seconds. Officers Mansfield and Rizzo chased the defendant to West 142nd Street between Chisolm Place and Fifth Avenue where Officer Mansfield apprehended the defendant by grabbing his arm. Officer Rizzo then grabbed the defendant's other arm and Officer Mansfield placed the defendant in handcuffs. Officer Mansfield testified that he had no information that the defendant had committed any crime prior to chasing and handcuffing the defendant (Tr. 34). After he handcuffed the defendant Officer Mansfield asked the defendant why he ran, to which the defendant replied "I stole drugs from my girlfriend."
Officer Byron Pena arrived after the defendant had been apprehended and handcuffed. He was told by officers at the scene that the defendant had discarded a red shopping bag in the parking lot. Officer Pena recovered the bag from the parking lot and showed Officer Mansfield that there appeared to be a kilo of cocaine, a scale and several bags inside the bag. Officer Mansfield testified that although he had handcuffed the defendant, he had not arrested the defendant until Officer Pena showed him what was inside the bag. According to the officer, until he was shown the contents of the bag he was merely detaining the defendant "[t]o determinate if there was an if he was why he was running" (Tr. 18).
The defendant was transported to the precinct and Officer Mansfield and Officer Rizzo went to the apartment that relating to the radio run. The officers spoke to a woman named Sharon who resided in the apartment. She consented to the search of her apartment and directed the officers to $11,800 which the officers recovered from inside a drawer in the bedroom. She told the officers that it was the defendant's money.
Conclusions of Law
Initially, police pursuit of an individual must be supported by reasonable suspicion
that the person is, was, or is about to engage in criminal activity (People v. Holmes, 81
NY2d 1056 [1993]; People v. Martinez, 80 NY2d 444 [1992]; People v. Robbins,
83 [*3]NY2d 928 [1994]). While flight can engender some
suspicion that the fleeing individual may be engaged in unlawful conduct, "[f]light alone [] or
even in conjunction with equivocal circumstances that might justify a police request for
information [] is insufficient to justify pursuit" (People v. Holmes, supra at 1058;
see also, People v. Brogdon, 8
AD3d 290 [2D 2004]). Thus, if a police officer has no individualized suspicion that a person
is engaged in criminal activity, that person's flight will not provide the reasonable suspicion
necessary to justify pursuit (People v. Martinez, supra at 448; Holmes,
supra; People v. Williams, 201 AD2d 381 [1D 1994]; People v. Mitchell,
185 AD2d 163 [1D 1992]; People v. Lawrence, 145 AD2d 375, 377 [1D 1988] ["It has
now been established that without any additional indicia of defendant's criminal activity, flight
alone does not justify pursuit"]). To pursue a fleeing individual the officer must also be aware of
"other specific circumstances indicating that the suspect may be engaged in criminal activity"
(People v. Holmes, supra at 1058; see also, People v. Martinez, supra). In
other words, flight can create the reasonable suspicion required to justify pursuit only if the
officer already has a founded suspicion that the suspect is engaged in some criminal conduct
(see, People v. Leung, 68 NY2d 734 [1986]; People v. Byrd, 304 AD2d 490 [1D
2003]; People v. Pines, 281 AD2d 311 [1D 2001]; People v. Easton, 182 AD2d
456 [1D 1992]).
In this case, Officer Mansfield had no suspicion that the defendant was engaged in any criminal activity prior to the defendant's flight. When he first saw the defendant, Officer Mansfield was responding to a 911 call of an assault in progress in an apartment in a twenty story apartment building. Under those circumstances, the defendant's presence exiting the lobby of that building did not provide any suspicion that he was involved in the alleged assault (see, People v. Torres, 115 AD2d 93, 98 [1D 1986] ["defendant's mere presence at the scene of a possible crime [] did not provide any additional indicia of criminality"]; People v. McCullough, 31 AD3d 812 [3D 2006]). As far as Officer Mansfield knew when he initially approached the defendant, the defendant was simply one of potentially hundreds of residents or guests who frequented that building on January 1, 2007.
Moreover, when Officer Mansfield first encountered the defendant, he no details about the alleged assault, no description of the alleged perpetrator, and no information about whether the alleged perpetrator was a male or a female. The radio run thus contained no description of an alleged perpetrator with which to compare the defendant. Nor was there anything about the defendant's appearance - he had no visible cuts, bruises or other telltale signs that he had just been in an altercation - that would have raised the officer's suspicion that the defendant had just been involved in an assault or any other criminal behavior. Despite that the officers later learned later that the defendant did in fact come from the apartment that was the subject of the 911 call, the information that the officers had initially did not provide the officers with any specific suspicion that it was the defendant who had engaged in assaultive behavior (see, e.g., People v. Torres, supra [*4]at 97 [where defendant did not match description of alleged drug seller and radio run provided no description of possibly armed' lookouts, pursuit was unlawful because defendant could not be linked specifically to report of criminal activity]).
As Officer Mansfield stated in his testimony, when he first encountered the defendant he wanted to get information from anyone nearby about whether they knew anything about the alleged assault. He also wanted to try to get into the apartment if possible. The officer thus approached the defendant in order to ask him if he knew anything and to see if the defendant had keys to the building, presumably so that the defendant could let the officers into the building. If the officers' primary concern was to investigate a possible assault inside that building which could have been ongoing when they first saw the defendant, then at least one of the officers should have immediately attempted to get into the building and up to the apartment. Notably, neither officer ever attempted to speak to other man who had exited the building about whether he could let them into the building or about what, if anything, he knew about an assault. Instead, both officers chased the defendant, a person about whom they had no information or suspicion that he was involved in the alleged assault.
The facts and holding of People v. Madera are instructive (189 AD2d 462 [1D 1993]). In that case, the police received a radio run of a fight with a knife which included some minimal descriptions of the people involved. The officers arrived at the scene where they observed three people, none fitting the description and none seen with a knife. When the police approached the three people, one of the three, the defendant, fled and the officers pursued him. Less than a minute into the chase the defendant discarded a gun. The First Department found that "apart from the defendant's flight, the police had not the slightest indication that he had committed any illegal act, and [] flight alone cannot, as a matter of law, constitute a sufficient basis for a detentive stop or for the functionally equivalent intrusion constituted by pursuit" (id. at 464).
Similarly, in this case, Officer Mansfield's testimony established that he had no basis to believe that the defendant was involved in the alleged assault or had engaged any other criminal behavior. In fact, the officer admitted that he had no information that the defendant had committed any crime prior to the pursuit. The defendant's subsequent handcuffed detention was, according to the officer, to determine why the defendant was running. Under those circumstances, "flight, as evidencing consciousness of guilt, is of slight value, and of none whatever unless there are facts pointing to the motive that prompted it'" (People v. Kreichman, 37 NY2d 693, 698 [1975]). While Officer Mansfield was permitted to approach the defendant and ask whether he knew anything about the alleged assault and whether he would let the officers into the building, the defendant's subsequent flight did not justify the officers' pursuit. As in Madera, while "[t]he police had, at most, some basis to approach the defendant for information; they had no reason to suspect him of criminal involvement and, accordingly, no basis to pursue or detain him" (People v. Madera, supra at 465). [*5]
The People argue that even if the initial pursuit was unlawful, the defendant's act of throwing the bag was a calculated act of voluntary abandonment. There is a presumption against the waiver of constitutional rights (People v. Howard, 50 NY2d 583 [1980]), and therefore courts "should conclude that abandonment has occurred in only the clearest of cases" (People v. Torres, supra at 99; see also, People v. Grant, 164 AD2d 170 [1D 1990]). Moreover, the People bear the burden of proof on this issue (People v. Howard, supra; People v. Rojas, 163 AD2d 1, 2 [1D 1990]).
While the chase lasted a total of 40 seconds, the defendant threw the bag a mere five to ten seconds into the pursuit. That the defendant relinquished the bag so quickly into the chase supports that it was a spontaneous reaction that was not attenuated from the unlawful police pursuit (see, People v. Madera, supra [gun discarded less than a minute into the chase suppressed]; People v. Grant, 164 AD2d 170 [1D 1990] [throwing gun after being chased for two blocks was a spontaneous reaction to the coercive pressure of the unlawful police pursuit]; People v. Mariono V., 107 AD2d 638 [1D1985] [throwing weapon while fleeing up a flight of stairs was a direct and spontaneous result of the illegal police pursuit]).
Moreover, where the defendant threw the bag - over a fence into a parking lot - does not establish that it was a calculated and thoughtful attempt to abandon the bag attenuated from the illegal police conduct (see, People v. Holmes, supra [suppression of bag containing cocaine upheld where the defendant threw the bag through a chain link fence during unlawful police pursuit]; People v. Torres, supra at 99 [throwing gun over a fence after defendant was unlawfully chased into an alley was not "an intellectual formulation of strategies"]). Like in Holmes and Torres, discarding the bag over the fence in this case was not an independent act of abandonment but a spontaneous reaction to the unlawful police pursuit. Accordingly, the motion to suppress the cocaine is granted.
The defendant did not move to suppress the currency recovered from Sharon's apartment in his memorandum of law. In any event, as there was no evidence that the defendant had standing to contest the search of the apartment and the apartment's resident consented to the search, that motion is denied.
The foregoing constitutes the opinion, decision and order of the court.
DATED:February 20, 2008
New York, NY____________________________
JUSTICE, SUPREME COURT
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