People v Saad
Annotate this CaseDecided on February 7, 2008
Criminal Court of the City of New York, Queens County
The People of the State of New York
against
Dawida Saad, Defendant.
2008QN003684
Charles S. Lopresto, J.
Defendant is charged with possession of burglar's tools. (PL § 140.35.) Defendant requested and the People consented to a Mapp hearing. (Mapp v Ohio, 367 US 643 [1961].) On January 31, 2008, this Court conducted a Mapp hearing in an effort to determine whether the physical evidence seized at the time of an alleged illegal search should be suppressed. After the hearing, decision was reserved. For the reasons set forth below, defendant's motion to suppress is granted.
The sole witness at the hearing was Police Officer John Dombrowski. Defendant presented
no evidence. Based upon the credible evidence adduced at the hearing, I make the following
findings of fact and conclusions of law.
FINDINGS OF FACT
Police Officer John Dombrowski has been a member of the New York City Police Department for four and one half years and has been assigned to the one hundred and sixth precinct for the last four years. On January 18, 2008, Police Officer John Dombrowski was working the 6:00PM to 2:00AM tour on routine motor patrol in a high crime area known for car break-ins and thefts. Officer Dombrowski was in uniform and was on patrol with a partner, Police Officer Conroy, and with Lieutenant Muller in a marked police van. At 8:30 P.M., it was dark and while driving the van with the headlights on, southbound on 121st Street, he observed defendant walking on the west side of the street, pushing a shopping cart with a tire iron protruding out. The shopping cart also contained a sink and a knapsack. From a distance of seven to eight car lengths away, Officer Dombrowski noticed defendant looking into two parked cars with his hands folded in front of him. [*2]As the van passed, defendant stopped looking into cars and moved between two cars in order to let the van pass.
The police van went around the block and when it returned, traveling southbound on 121st Street, defendant was seen on the other side of the street walking with the shopping cart, approaching the corner, having progressed three to four car lengths, no longer looking in vehicles. Officer Dombrowski stopped the police van at the intersection of Linden Boulevard and 121st Street to speak to defendant because of the tire iron sticking out of the shopping cart. The two officers and one lieutenant got out of the police van and approached defendant on the corner.
Police Officer Dombrowski stood less than one foot directly behind defendant, Lieutenant Muller stood behind Officer Dombrowski, and Police Officer Conroy stood facing defendant, to defendant's right by less than two feet, and in between defendant and his shopping cart. Officer Conroy asked defendant what he was doing in the area and what was he doing with the tire iron. Defendant stated that he was looking for garbage and recycled materials, that he was going home and that he used the tire iron to tear apart refrigerators and air conditioners left on the street. Officer Dombrowski observed no obvious trash in the area.
Officer Dombrowski asked defendant if he had anything on him the police officers should know about. Defendant responded that he had a utility knife and a flashlight in his back pockets. While defendant's arms were spread out to his sides in the shape of a "Tee," Officer Dombrowski searched defendant's back pockets and found on defendant's person, a utility knife and a flashlight. Defendant had not been placed under arrest at the time of this search as according to the testimony, carrying a utility knife is not a criminal offense. At this point, as Officer Dombrowski was finishing the search of defendant's pockets, he asked defendant for identification, defendant provided it and the lieutenant took it. Defendant's identification was checked and it was discovered that defendant was not traveling in the direction of his home as claimed, and that defendant had an open criminal case for possession of burglar's tools.
While defendant's arms were spread and Officer Dombrowski was searching defendant's back pockets, both police officers asked defendant for permission to search the knapsack in the shopping cart and defendant said that they could. Officer Conroy searched the knapsack in the presence of Officer Dombrowski.
In the knapsack were a sweatshirt and tools, including seven screwdrivers, three nut drivers,
one adjustable wrench, two pliers, one wirecutter, one flashlight, and two pairs of work gloves.
Defendant was then placed under arrest for possession of burglar's tools. Officer Dombrowski
was the arresting officer and filed the arrest report.
CONCLUSIONS OF LAW[*3]
The applicable standard for judging the propriety of police conduct in street confrontations with private citizens is set forth in People v De Bour, 40 NY2d 210 [1976]. The purpose of that decision was to provide clear guidance for police officers seeking to act lawfully in what may be fast-moving street encounters and a cohesive framework for courts reviewing the propriety of police conduct in these situations. (Id; People v Moore 6 NY3d 496 [2006].) In People v De Bour 40 NY2d 210 [1976], the Court delineated four levels of permissible police intrusion, the propriety of each level depending upon the circumstances presented, as follows:
[L]evel one permits a police officer to request information from an individual and merely
requires that the request be supported by an objective, credible reason, not necessarily indicative
of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion
and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer
to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular
individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to
believe that the person to be arrested has committed a crime.
(People v Moore, 6 NY3d at 498-499; citing People v De Bour, 40
NY2d at 223.)
The first level, a request for information, is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. (People v De Bour, 40 NY2d at 213, 219-220.) If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about that object. (People v Hollman, 79 NY2d 181, 191 [1992].) The articulable reason for the approach and request for information on a level one predicate, does not, by its nature, raise suspicions enough to warrant a further intrusion such as a search of a defendant. (Id; People v Gonzalez, 39 NY2d 122 [1976].)
A police encounter with a civilian moves from a level one request for information to a level two common law right of inquiry where the person approached might reasonably believe, from the content of the officer's questions, that he or she is suspected of some wrongdoing. (People v Hollman, 79 NY2d at 191.) A consent to a search on a level two inquiry will not be upheld unless the request to search is supported by a founded suspicion of criminality. (People v Dunbar 5 NY3d 834 [2005].) The discovery of additional information during the encounter may justify an escalated police intrusion. (People v Walker, 192 AD2d 734 [2d Dept 1993].) The nature and location of the area where a suspect is detained may be one of the factors considered in determining whether, in a given case, the police acted reasonably. (People v Bronston, 68 NY2d 880 [1986].) A defendant's nervousness and innocuous discrepancies in his or her answers to police questioning regarding the origin and destination of a trip does not alone, as a matter of law, provide a basis for reasonable suspicion of criminality. (People v Banks, 85 NY2d 558 [1995].) [*4]
Level three authorizes a police officer to forcibly stop and detain a person if the officer has a "reasonable suspicion that such person has committed, is committing or is about to commit a crime. (People v De Bour, 40 NY2d at 223; People v Skinner, 48 NY2d 889 [1970].) This degree of intrusion also permits an officer to frisk a suspect for deadly weapons where he reasonably suspects that he or she is in danger of physical injury. (People v DeBour, 40 NY2d at 223; People v Russ, 61 NY2d 693 [1984]; see also CPL §140.50[3].)
Whatever the level used, police initiated intrusions must be justified at their inception.
(Terry v Ohio 392 US , 19-20 [1968]; People v Moore, 6 NY3d at 498.) A
defendant's later conduct cannot validate an encounter that was not justified at its inception. (People v Moore, 6 NY3d 496;
People v De Bour, 40 NY2d at 220.) Evidence acquired as a result of police conduct initiated
on an insufficient predicate, must be suppressed. (Terry v Ohio 392 US at 12; People
v Moore, 6 NY3d at 498.)
The People bear the heavy burden to establish by clear and positive evidence
that consent to a search was voluntary and the defendant waived his or her constitutional rights.
(Bumper v North Carolina, 391 US 543 [1968]; People v Hollman, 79 NY2d at
194; People v. Gonzalez, 39 NY2d 122, 128 [1976]; People v Whitehurst, 25
NY2d 389 [1969].) Consent forced by police coercion is not voluntarily given and any evidence
that flows therefrom must be suppressed. (Id.) The defendant, however, bears the
ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should
not be used against him. (People v Whitehurst, 25 NY2d 389.)
The Court of Appeals has articulated several factors which may influence one's voluntary consent to a search with no one circumstance being determinative. (People v Gonzalez, 39 NY2d at 128.)Such factors include: (1) whether the subject was in police custody; (2) the subject's background; (3) whether the subject was evasive or cooperative with law enforcement authorities; and (4) whether the police advised the subject of the right to refuse consent. (Id.) Consent contemporaneous with, or immediately followed by, a defendant's subjection to an illegal frisk and detention has been found to be invalid. (People v Banks, 85 NY2d at 563; People v Hollman, 79 NY2d 191-192; People v. Packer,AD3d, 2008 NY Slip Op 577, *4 [1st Dept 2008].)
In the instant case, the conduct that caught Officer Dombrowski's attention and which was the articulated predicate for the stop, consisted of defendant pushing a shopping cart containing a tire iron in an area known for car thefts and defendant's manner of looking into two cars. Looking into the two cars could well be susceptible to an innocuous interpretation and defendant was no longer doing so when the police van returned from circling the block. Had the officers' questioning been limited to defendant's identity, destination, reason for being in the area, and what defendant was doing with the tire iron, the level of intrusion would have been constitutionally permissible. (People v Hollman, 79 NY2d 181.)Once defendant gave the plausible answer for carrying the tire iron, the encounter should have ended. [*5]
At the time of the stop, there was no predicate to support a founded suspicion that criminal activity was afoot (see People v Dunbar, 5 NY3d at 835; People v DeBour 40 NY2d at 223,) or to raise a reasonable suspicion that defendant was armed and dangerous. (Id; People v Russ, 61 NY2d 693.) Nevertheless, the encounter progressed and Officer Dombrowski asked defendant whether he had anything the police should know about, a question incident to a level two or level three encounter. (see People v Dunbar, 5 NY3d at 835; People v DeBour, 40 NY2d 223; People v Russ, 61 NY2d 693; People v Walker, 192 AD2d 734 [2d Dept 1993].) Notably, it was only after the frisk of defendant's back pockets that his identification was requested, that it was determined that defendant was not walking in the direction of his home as he had claimed, and that defendant had an open criminal case on a charge of possession of burglar's tools.
The presence of the tire iron, the location of the encounter, the additional information gleaned, including the statement that defendant was going home, when in fact, he was traveling in a different direction, the presence of the utility knife and the open case of possession of burglar's tools, taken together, might very tenuously support a common law right to inquire based upon a founded suspicion that criminal activity is afoot. (e.g. People v Dunbar, 5 NY3d at 835; People v DeBour, 40 NY2d 210; People v Walker, 192 AD2d 734.) These factors do not, however, support a finding that the officer had a reasonable suspicion that defendant was involved in a felony or misdemeanor such that defendant could be forcibly stopped and frisked. (see People v Banks 85 NY2d 558; People v Hollman, 79 NY2d 181; People v. Packer,AD3d, 2008 NY Slip Op 577,*4.)
Notwithstanding how the encounter progressed, the People contend that defendant's voluntary consent to the search of the knapsack validates the level of police intrusion. (see People v Packer,AD3d, 2008 NY Slip Op 00577, *3.) The People argue that the search of the knapsack was entirely legal in light of defendant's consent and that therefore, suppression of the alleged burglar's tools should be denied.
The uncontroverted testimony adduced at trial evinces that at the time the consent was given, defendant was surrounded by two police officers and a lieutentant, was separated by one officer from the shopping cart containing the knapsack, had his arms extended straight out to the side, Officer Dombrowski's hands were in his back pockets removing a utility knife and a flashlight, and both Officer Dombrowski and Officer Conroy requested permission to search the knapsack. This atmosphere, as inferred from the testimony of Officer Dombrowski and as interpreted on the objective facts, was coercive and the level of intrusion was illegal. The People have failed to meet their burden of establishing the voluntariness of defendant's consent. Thus, even if the Court were to find that there was a founded belief that criminality was afoot, the search was improper as the consent was not voluntary.
Therefore, upon the foregoing grounds, defendant's Mapp motion to suppress the tools is [*6]granted. The tools are suppressed as the fruit of an unauthorized search conducted without a voluntary consent. (Wong Sun v United States, 371 US 471 [1963].)
The foregoing constitutes the decision and order of the Court.
Order entered accordingly.
Dated:February 7, 2008
Queens, New York
Charles S. Lopresto
Judge of the Criminal Court
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