People v Sosa

[*1] People v Sosa 2008 NY Slip Op 51805(U) [20 Misc 3d 1140(A)] Decided on September 5, 2008 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2008
District Court of Nassau County, First District

The People of the State of New York,

against

Jonathan Sosa, Defendant.



2007NA019457



Hon. Kathleen Rice, District Attorney, Nassau County

By:Matthew Lipinsky, ADA

Attorney for the Defendant: Nassau County Legal Aid Society

By: John Karl Alvin, Esq

Andrew M. Engel, J.

The Defendant is charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to Penal Law § 265.01(1).

The Defendant previously moved, pursuant to CPL § 710.20(1) and CPL § 710.60(2),to suppress tangible property seized from him, to wit: an alleged gravity knife, and two (2) statements he allegedly made following said seizure. On March 24, 2008, Hon. Sondra K. Pardes granted that motion to the extent of ordering a Mapp/Dunaway/Huntley [FN1] hearing be held to determine the admissibility of a knife found in the Defendant's pocket and the two (2) statements allegedly made thereafter. The hearing was held before this court (Engel, J.) on July 29, 2008.At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) Additionally, where, at a Huntley hearing, a defendant alleges a violation of his rights pursuant to Miranda v. Arizona, 384 [*2]U.S. 436, 86 S. Ct. 1602 (1966), the People have the burden of going forward to establish that the Defendant was adequately advised of his rights and that he made a knowing and intelligent waiver of same. People v. Love, 85 AD2d 799, 445 NYS2d 607 (3rd Dept. 1981) aff'd 57 NY2d 998, 457 NYS2d 238 (1982); People v. Woods, 89 AD2d 1022, 454 NYS2d 466 (2nd Dept. 1982); People v. Shields, 125 AD2d 863, 510 NYS2d 218 (3rd Dept. 1986) lv. den. 69 NY2d 955, 516 NYS2d 1039 (1987) Furthermore, the People have the burden of proving the voluntariness of the statements allegedly made beyond a reasonable doubt. People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

In an attempt to meet these burdens, the People relied exclusively upon the testimony of Police Officer Alejandro Perez. The Defendant did not call any witnesses. After listening to Officer Perez and observing his demeanor, except as otherwise specifically noted hereinafter, the court finds his testimony to be credible.

Officer Perez, a sixteen (16) year member of the Nassau County Police Department, testified that he received basic police academy training when he first joined the department and thereafter received additional training in the form of numerous and various unidentified courses, including training involving the identification and handling of handguns and knives. This latter training included how to see a weapon, how to identify it and how to determine if is illegal. Officer Perez further testified that he has made approximately one-hundred (100) weapons arrests.

On July 27, 2007 Officer Perez was working the 7:30 a.m. to 5:30 p.m. tour with his partner, P.O. Andrew Carbone, in plain clothes and in an unmarked patrol car, within the confines of the Third Precinct in Nassau County. At approximately 4:40 p.m. on that day Officer Perez and his partner exited the parking lot of the First District Court of Nassau County, in Hempstead, New York, heading westbound on Jackson Street. As they approached the intersection of Jackson Street and North Franklin Street, Officer Perez brought his vehicle to a stop for a red light approximately three (3) car lengths from the intersection. At the time, it was bright daylight; the officers' view was unobstructed; there was vehicular traffic moving north and south on North Franklin Street; and, there were pedestrians on the street in this mixed residential and primarily commercial area.

While sitting in this position Officer Perez's attention was drawn to three (3) males standing on the southwest corner of this intersection, approximately fifty (50') feet to seventy-five (75') feet away. One (1) of these males was the Defendant, Jonathan Sosa. Officer Perez's attention was drawn to these men because they were wearing clothing similar in color. The Defendant was wearing blue jeans and all three (3) men were wearing blue and white. According to Officer Perez, these colors represent MS-13 gang colors, although Officer Perez acknowledged that blue and white are common colors one might see on other pedestrians in the area. Officer Perez further testified that in addition to the color of the clothing worn by the three (3) men he "observed what [he] believed to be hand gang signs they were showing each other." (P. 10 L. 10)[FN2] The Officer described these hand signals as "the number three facing downwards toward the street with the other free hand, ..., it was like, ... a cupping motion." (P. 10 L. 15)

At the time of making these observations, the traffic light at which the officers were [*3]waiting turned green and traffic began to move slowly. As he was working his way through the intersection Officer Perez observed the three (3) men separate, with two (2) walking eastbound on Jackson Street and the Defendant walking westbound on Jackson Street. Officer Perez intended to follow the Defendant or the other two males "simply to investigate. See why they were conducting themselves that way and to see if there was possible gang activity that they were involved in." (P. 11 L. 22)

As he drove through the intersection Officer Perez kept following the Defendant as he continued to walk westbound along the sidewalk. Officer Perez then drove past the Defendant, made a u-turn to face eastbound on Jackson Street and stopped his vehicle. Officer Perez and Officer Carbone exited their vehicle, with their guns holstered and their police shields on the outside of their clothing, and approached the Defendant, who Officer Perez described as "cooperative; non-combative." (P. 13 L. 5) Officer Perez testified that when he was approximately two (2') feet away from the Defendant he noticed a metal clip on the outside portion of the Defendant's right front pants pocket which he believed to be a knife. On cross-examination Officer Perez indicated that at this point he "just saw the clip that was on the outside[,]" (P. 29 L. 17) but also saw the outline of a six inch bulge in the Defendant's right front pocket consistent with a folding knife. On re-direct examination Officer Perez indicated that when he observed the clip attached to the Defendant's pocket "a very small portion of the knife was sticking up." (P. 38 L. 4) Officer Perez testified in the affirmative when asked if upon seeing that the Defendant had a knife was he in fear for his safety.

Upon seeing the knife, as Officer Perez began to engage the Defendant in brief conversation about his pedigree, Officer Carbone ordered the Defendant "not to move and put his hands up." (P. 13 L. 17) Officer Carbone then conduct a patdown and immediately removed the knife from the Defendant's pocket and handed it to Officer Perez. As Officer Carbone removed the knife from the Defendant's pocket the Defendant is alleged to have stated that "he uses that knife for protection against the gangs and he also worked security in many clubs." (P. 14 L. 8) This statement was not made in response to any questions or threats.

Officer Perez then examined the knife and determined it to be an illegal gravity knife, whereupon the Defendant was informed that he was under arrest and handcuffed behind his back. According to Officer Perez the Defendant then stated, "I'm getting locked up because I am MS-13. Why don't you lock up the other two MS guys I was with?" (P. 15 L. 22) This statement too was not made in response to any questions or threats.

The People argue that the officers' initial contact with the Defendant rose only to the first level of police intrusion, as outlined in People v. DeBour, 40 NY2d 210, 386 NYS2d 375 (1976), allowing for a request for information based upon some objective credible reason not necessarily indicative of criminality. The People suggest that Officer Perez's testimony concerning the observation of alleged gang colors and hand signals, in an area he described as a high crime - high gang activity area, supported the initial stop. The People further argue that upon approaching the Defendant and observing a metal clip, and what appeared to be a knife in the Defendant's pocket, Officer Perez had the right to frisk the Defendant, pursuant to CPL § 140.50(3), because the officer testified that he was in fear for his safety. Finally, the People argue that the seizure of the knife being proper, the Defendant's subsequent statements were made spontaneously and voluntarily. [*4]

Defense counsel argues that the police had absolutely no basis for stopping the Defendant in the first place. Counsel suggests that the observation of alleged gang colors and hand signals, in an alleged high crime area, may be sufficient reason for the officers to have followed the Defendant and kept him under observation, but was not reason enough for stopping him to inquire. Alternatively, the Defendant argues that even if the officers had reason to approach the Defendant, the observation of a metal clip and part of a knife did not provide the officers with sufficient reasonable suspicion or probable cause to permit the patdown of the Defendant and the seizure of the knife from the Defendant's pocket. Finally, counsel argues that if the search is found to be improper the subsequent statements must be suppressed as the fruits of that illegal search or, alternatively, that the statements were made in response to what was tantamount to a custodial interrogation.

Both sides requested, and were granted, the opportunity to brief their respective positions on the issues raised at the hearing. Neither side bothered to avail themselves of that opportunity.

"Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual." People v. Stewart, 41 NY2d 65, 66, 390 NYS2d 870, 871 (1976); See also: People v. Allen, 109 AD2d 24, 489 NYS2d 749 (1st Dept. 1985) In making this analysis, the court "must weigh the degree of intrusion entailed against the precipitating and attending circumstances" People v. Salaman, 71 NY2d 869, 870, 527 NYS2d 750, 751 (1988), "concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances (citations omitted), for reasonableness is the touchstone by which police-citizen encounters are measured (citations omitted)." People v. Lomiller, 30 AD3d 276, 277, 818 NYS2d 27, 28 (1st Dept. 2006); See also: People v. Alvarez, 308 AD2d 184, 764 NYS2d 42 (1st Dept. 2003)

In People v. De Bour, supra ., the Court of Appeals "set out a four tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity[,] " People v. Hollman, 79 NY2d 181, 184, 581 NYS2d 619, 620 (1992) as follows:

(1) The least intrusive encounter permits an officer to approach an individual to request information where there is "some objective credible reason for that interference not necessarily indicative of criminality." People v. De Bour, supra . at 223, 386 NYS2d 375, 384 (1976) Generally, this authorized "request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination." People v. Hollman, supra . at 185, 581 NYS2d 619, 621 (1992)

(2) The next level of permissible intrusion is the common law right to inquire, which is predicated upon "a founded suspicion that criminal activity is afoot[.]" People v. De Bour, id. at 223, 386 NYS2d 375, 385 (1976) At this level, a police officer may interfere with a citizen to the extent necessary to gain explanatory information; but, such interference may not rise to the level of a forcible seizure. People v. De Bour, id.; People v. Cantor, 36 NY2d 106, 365 NYS2d 509 (1975) Distinguished from the information which may be sought at a level one (1) encounter, the officer "may ask[] more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation[.]" People v. Hollman, supra . at 185, 581 NYS2d 619, 621 (1992) [*5]

(3) At the next level of intrusion, a police officer may forcibly stop and detain a citizen where the officer "entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor[.]" People v. De Bour, supra . at 223, 386 NYS2d 375, 385 (1976) "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand." People v. Cantor, supra . at 112, 365 NYS2d 509, 516 (1975); See also: People v. Martinez, 80 NY2d 444, 591 NYS2d 823 (1992); People v. William II, 98 NY2d 93, 745 NYS2d 792 (2002) As a corollary to this temporary stop for questioning, if the officer reasonably suspects that he or she is in danger of physical injury the officer is authorized to frisk the individual. See: CPL § 140.50(3); People v. De Bour, supra .

(4) The final, and most intrusive, level of encounter is an arrest of an individual when the officer has probable cause to believe that the person has committed a crime or offense in his presence.

Turning to the facts of the case sub judice, Officer Perez's testimony is clear that upon observing the Defendant it was the Officer's intention to do nothing more than make a level one (1) inquiry for information. Officer Perez does not suggest that before exiting his vehicle he had a founded suspicion that criminal activity was afoot, that he had a reasonable suspicion of criminality or that he had probable cause to believe that the Defendant had committed a crime in his presence, or otherwise. Relying solely upon his observations of three (3) men wearing what he believed to be gang colors and making what he believed to be gang hand signals Officer Perez intended to stop the Defendant to ask him for pedigree information, where he had come from and what he was doing.

The court does not find that the People established an "objective credible reason" for Officer Perez to approach the Defendant under the first level of DeBour. The People failed to elicit any testimony from Officer Perez concerning what training or knowledge, if any, he had concerning alleged gang colors and hand signals or the basis for the Officer's belief that what he observed was gang related. Officer Perez neither adequately described, nor demonstrated, this alleged hand signal and conceded that the colors, blue and white, were not uncommon for pedestrians. Indeed, Officer Perez only identified the Defendant's pants as blue jeans, which are far from being limited to gang members, and simply offered, in the most subjective terms, that "[t]o me it means that they are members of the MS-13 gang." (P.10 L.20)

Moreover, even if the People had properly established an objective basis to believe that what Officer Perez observed were gang colors and hand signals, this "hardly establishes grounds sufficient to support the challenged police action." People v. Havelka, 45 NY2d 636, 641, 412 NYS2d 345 (1978) [seventeen (17) men dressed in attire indicative of a motorcycle gang]; See also: People v. Posnjak, 72 AD2d 966, 422 NYS2d 264 (4th Dept. 1979) [evidence that defendant belonged to a street gang would not justify the officer's action]. Additionally, that these observations were made in an alleged high crime area "when added to the meager basis for the officers' actions, would not justify this action ...." People v. Posnjak, id. at 967, 422 NYS2d 264, 265 (4th Dept. 1979) See also: People v. Rutledge, 21 AD3d 1125, 804 NYS2d 321 (2nd Dept. 2005) lv. den. 6 NY3d 758, 810 NYS2d 426 (2005); People v. McIntosh, 96 NY2d 521, 730 NYS2d 265 (2001)

Officer Perez's intention of seeking limited information notwithstanding, even if a level [*6]one inquiry was proper under the circumstances, Officer Perez and his partner never conducted such an inquiry. No sooner did Officers Perez and Carbone step out of their vehicle and begin to approach the Defendant than the level of the Officers' intrusion escalated to a level four encounter. See: People v. Moore, 6 NY3d 496, 814 NYS2d 567 (2006); People v. Silvestre, 119 AD2d 601, 500 NYS2d 772 (2nd Dept. 1986)

Accepting Officer Perez's testimony, for the sake of this discussion, that when he was two (2) feet from the Defendant he observed a metal clip, a very small portion of a knife and the outline of what appeared to be a folding knife, just as Officer Perez began to make his inquiry of the Defendant, Officer Carbone simultaneously told the Defendant "not to move and put his hands up." (P. 13 L. 17) Officer Carbone then patted the Defendant down and immediately removed the knife from the Defendant's right front pocket. As previously indicated, this detention of the Defendant can only be justified if the Officers, at that moment, had a reasonable suspicion that the Defendant committed, was committing or was about to commit a crime. People v. DeBour, supra . Moreover, even if the Officers had such "reasonable suspicion ... justifying temporary detention for questioning (citation omitted) such circumstances did not justify a search of defendant's pocket without any inquiry, which amounted to an arrest requiring probable cause (citations omitted)." People v. Cobb, 208 AD2d 453, 617 NYS2d 721, 722 (1st Dept. 1994); See also: People v. Hill, 171 AD2d 1017, 569 NYS2d 227 (4th Dept. 1991) lv. den. 78 NY2d 1077, 577 NYS2d 240 (1991); People v. Moore, supra .; People v. Roberts, 94 AD2d 237, 464 NYS2d 111 (1st Dept. 1983) While the observation of the clip and the outline of a folding knife might have allowed the police to exercise their common law right to inquire, it did not provide the Officers with probable cause sufficient to allow them to conduct an immediate seizure and search of the Defendant. See: People v. Francis, 17 Misc 3d 870, 847 NYS2d 398 (Sup. Ct. Bx. Co. 2007)

The search and seizure of the Defendant was predicated upon these observations of the clip and outline of a folding knife. It has been held, however, that "a knife is not a weapon per se (citations omitted)." People v. Jose F., 60 AD2d 9189, 401 NYS2d 573 (2nd Dept. 1978); In the Matter of Ricci S., 34 NY2d 775, 358 NYS2d 141 (1974) "There are many legitimate reasons for a person to carry a small pocket knife and numerous citizens legally do so in the course of their occupations." People v. Irizarry, 17 Misc 3d 1118, 851 NYS2d 65 (Sup. Ct. NY Co. 2007); See also: United States of America v. Irizarry, 509 F. Supp. 2d 198 (E.D.NY 2007) Penal Law § 265.01(1) clearly does not criminalize the possession of all knives, only gravity knives, switchblade knives, pilum ballistic knives, metal knuckle knives and cane swords, as defined in Penal Law § 265.01(4)(5)(5-a) and (5-b). Similarly, Penal Law § 265.01(2) only criminalizes the possession of daggers, dangerous knives, dirks, razors, stiletto's or other dangerous or deadly weapons "with intent to use the same unlawfully against another."

The People have failed to provide any evidence or basis to believe that prior to the knife here in question being seized Officers Perez had any reason to believe that the clip and portion of the knife he observed was an illegal weapon; nor did Officer Perez suggest that the Defendant possessed the knife with the intent to use same unlawfully against another. Officer Perez never saw the knife outside of the Defendant's pocket until it was seized; he did not observe the operation of the knife until it was seized; he did not see the Defendant use the knife at any time; [*7]nor did have any information to suggest that the Defendant had used the knife in any illegal fashion. In fact, Officer Perez testified that he did not determine that the knife was an illegal gravity knife until after it was seized and tested. This after acquired evidence, however, cannot validate a stop and seizure which was improper at its inception. People v. Packer, 49 AD3d 184, 851 NYS2d 40 (1st Dept. 2008); People v. William II, supra .; People v. Moore, supra .; People v. Roberts, supra .

These legal principles are well highlighted by contrasting the minimal information available to Officer Perez at the time of the seizure and search of the Defendant with the facts and circumstances of the following cases: In People v. Jimenez, 187 AD2d 610, 590 NYS2d 108 (2nd Dept. 1992) the police were flagged down by a group of individuals who were holding the defendant and told the officers that the defendant had robbed an old man. After the defendant broke free, fled, was pursued and apprehended a search was conducted revealing a knife. Given these facts, it was held that the police had probable to search and arrest the defendant. In People v. Alford, 146 AD2d 635, 536 NYS2d 848 (2nd Dept. 1989) reasonable cause for a stop, frisk and search of the defendant, resulting in the recovery of a knife, was upheld based upon a radio transmission of a knife-point robbery, the observation of three (3) men, two (2) of whom fit the description of the suspects, the men seeking to flee when told to stop by the officers, and the observation of a bulge in the defendant's pocket. Similarly, in People v. Sansalone, 197 AD2d 549, 602 NYS2d 197 (2nd Dept. 1993) the defendant's presence in close spatial and temporal proximity to the scene of a burglary and his matching, in all material respects, the description given by the victim provided a proper basis for the stop and frisk of the defendant, leading to the discovery of a knife on his person. In re Camille H., 215 AD2d 143, 626 NYS2d 120 (1st Dept. 1995) the court found both reasonable and probable cause to exist for a search that resulted in the discovery of a switchblade knife when the officer observed the defendant smoking marijuana, a misdemeanor, in his presence.Nor may Officer Carbone's reaching into the Defendant's pocket to recover the knife therein be justified, pursuant to CPL § 140.50(3), based upon Officer Perez's alleged fear for his physical safety. "As concerned as we must be for the safety of every officer, we need to be equally concerned with the right of privacy and the personal security of the individual. Although it is not always easy to reconcile the two, the test is not merely society's interest in stopping crime and the danger to the policeman, but the rights of the individual involved and the interests of the Fourth Amendment in vindicating the rights of all of us." People v. Allen, supra . at 28, 489 NYS2d 749, 753 (1st Dept. 1985) To this end, before such a search may be upheld, the testimony presented must demonstrate that the officer had "an articulable basis to fear for his own safety[.]" People v. Torres, 74 NY2d 224, 544 NYS2d 796 (1989) In the matter before this court there was no such testimony presented at the hearing.

Officer Perez testified that it was in the middle of the afternoon in a primarily commercial area; there was pedestrian and vehicular traffic in the area; the Defendant was merely walking and then standing on the public sidewalk; when approached, the Defendant was cooperative and non-combative; the Defendant never attempted to flee or resist; and, he never reached for his pocket or made any other furtive movements. See: People v. Hill, supra .; People v. St. Clair, 80 AD2d 691, 436 NYS2d 449 (3rd Dept. 1981) Officer Perez's "unsupported conclusory statement[] ... at the hearing that [he] was afraid for [his physical safety] appears to have been little more than a rote recital of the words deemed necessary to retroactively validate a patently improper [*8]search." People v. Howard, 147 AD2d 177, 542 NYS2d 536 (1st Dept. 1989); Contrast: People v. Medina, 16 Misc 3d 382, 842 NYS2d 227 (S.C. Bx. Co. 2007) [officer observed clip and top of knife; upon questioning, the defendant initially denied having anything sharp or anything that could harm the officer and then the defendant made a move toward his pocket as if to remove the knife]; People v. Solano, 52 AD3d 848, __ NYS2d __ (2nd Dept. 2008) [in the early morning hours the defendant ran in front of the officer's patrol car, gave evasive answers when questioned and refused to identify the bulge in his pocket]; People v. Hall, 23 AD3d 151, 802 NYS2d 691 (1st Dept. 2005) [the police received a detailed description from a known source regarding a man with a gun; as the defendant turned toward the responding officers he moved his hand toward his waistband, allowing the officer to grab the defendant's hand and, in doing so, a knife was observed in the defendant's waistband]

All of the foregoing principles are well presented in People v. Herrera, 19 Misc 3d 1140, 2008 WL 2249632 (Sup. Ct. Bx. Co. 2008), a case with facts virtually indistinguishable from the matter sub judice. Therein, plain clothes detectives and an officer, riding in an unmarked car, observe the defendant cross in front of their vehicle very slowly. At that point one of the detectives noticed a metal clip in defendant's back right-hand pocket which, based upon the detective's experience, was believed to be either a gravity knife or a small caliber weapon. The police exited their vehicle, without their guns drawn, approached the defendant and pulled the clip out of the defendant's pocket. The defendant was arrested; and, on the way to the station house made statements regarding the knife recovered. At the suppression hearing, the detective testified that he feared for his safety at the time of the encounter. Based upon those facts the court held, as this court does today, that the officer did not have probable cause to search the defendant "because he did not know whether the clip was attached to a legal or illegal knife/weapon or any other innocuous object." People v. Herrera, supra . At best, the police had a common law right to inquire in an effort to "gain explanatory information, but short of a forcible seizure (citations omitted)." People v. DeBour, supra . at 223, 386 NYS2d 375, 385

"While [this court is] sensitive to the need for, and recognize[s] the difficulties attendant upon, vigilant law enforcement efforts in a society whose citizens are all too often the victims of crime and are understandably beset with fears regarding criminal activity, [this court] also recognize[s its] obligation to be ever vigilant to insure that such considerations do not overwhelm the constitutional bulwarks which have historically insured one's right to be secure against unreasonable and unjustifiable governmental intrusions upon one's privacy and security. The police response to defendant's activities in this case constituted precisely such an unwarranted and unjustifiable intrusion." People v. Howard, supra . at 182, 542 NYS2d 536, 540 (1st Dept. 1989)Accordingly, the court is constrained to grant the Defendant's motion and suppress the knife taken from his right front pants pocket, as being the fruit of an illegal search and seizure. For this same reason, the statements which followed the illegal search and seizure are suppressed as well.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

September 5, 2008

___________________________

Andrew M. Engel

J.D.C. Footnotes

Footnote 1:Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979); People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965)

Footnote 2: Pagination refers to hearing transcript 7/29/08.