People v Robinson
Annotate this CaseDecided on February 24, 2016
Supreme Court, Bronx County
The People of the State of New York
against
Trevor Robinson, Defendant
3268/2013
Ralph A. Fabrizio, J.
The defendant is charged, inter alia, with Robbery in the Second Degree, Criminal Possession of Stolen Property, and related crimes. It is alleged that he and an accomplice, co-defendant Antoine Ross,[FN1] stole two iPhones, at gun point, from two different individuals. The principle question before this Court is whether probable cause to arrest this defendant exists based largely on police tracking of the stolen phone's location through use of an application called "Find My I Phone." The answer is yes.
A Huntley/Wade/Mapp/Dunaway hearing, ordered by Justice Michael Gross, has been conducted. The People called four witnesses: Police Officers Clement Krug, Osvaldo Hernandez, and Juan Santiago, and Detective Vincent Virbukas. The Court finds each of the People's witnesses credible. Defendant's motion to suppress is denied in all respects.
FINDINGS OF FACT
On October 7, 2013, at approximately 3:50 a.m., Police Officer Clement Krug, a twelve-year veteran of the New York City Police Department (NYPD), and his partner, Police Officer Lewis, responded to a call reporting a robbery in progress. Two individuals, Jason Goode and Nicky Charles, had just flagged down other police officers from the NYPD's Emergency Services Unit (ESU). Officers Krug and Lewis met Mr. Goode, Ms. Charles and the ESU officers at 149th Street and Morris Avenue in Bronx County. Mr. Goode and Ms. Charles told Officer Krug they had been robbed at gunpoint a short time earlier, as they were leaving a club located near the intersection of 138th Street and Park Avenue, also in Bronx County. The robbers had taken two iPhones, one from Mr. Goode and the other from Ms. Charles. They also took Mr. Goode's Burberry belt, and about $30. Mr. Goode and Ms. Charles described the perpetrators only as two black men, one taller than the other. They were unable to provide any description of the clothing the men wore. One of the men had pointed a silver handgun at them during the robbery. Mr.Goode and Ms. Charles told the police officers that the two men had driven off in a two-door black sedan. They did not provide any further description of the vehicle, including a [*2]license plate number
Officer Krug asked Mr. Goode if he had installed an application called "Find My iPhone" on his own cell phone. This application allows for real-time tracking of the phone's location. It only works if the phone being tracked is turned on. Mr. Goode, who had an Apple iPhone 5, stated he did have that app on his phone. Officer Krug took out his own personal iPhone and asked Mr. Goode if the officer could use his own phone to track Mr. Goode's. Mr. Goode agreed; he typed his own screen name and password into Officer Krug's phone. The officer's phone immediately flashed a map, indicating Mr. Goode's phone was still on. The map pin-pointed the stolen iPhone's location at 106th Street and First Avenue in Manhattan. Officers Krug and Lewis received necessary permission from their own supervisor to drive out of Bronx County and into New York County to find the iPhone. Mr. Goode and Ms. Charles rode in the back seat of the police car as they officers drove from the Bronx into Manhattan. As they were driving, the "Find My iPhone" tracker showed the phone to be moving. The movement stopped at East 120th Street and First Avenue in Manhattan.
Officer Krug called for back-up police officers to assist in the pursuit of the phone, and possible perpetrators. Police Officer Osvaldo Hernandez and his partner, Police Officer Juan Santiago, joined the pursuit in their own patrol car. They maintained radio contact with each other, and Officer Krug directed the other officers to East 120th Street and First Avenue. Officer Krug drove east on 120th Street from Second toward First Avenue. A black, two-door, Buick sedan was parked by a fire hydrant near First Avenue on that street. Mr. Goode and Ms. Charles pointed at the car and repeatedly screamed, hysterically, "That's them. That's them." Two black men were seated in the driver and front passenger seat of the car. About twenty minutes had passed since Officer Krug first spoke with Mr. Goode and Ms. Charles.
Officers Krug and Lewis left their police vehicle with guns drawn. They approached the driver's side of the car. Officers Hernandez and Santiago pulled up right behind them. These officers left their own vehicle and approached the passenger's side of the car. Defendant Ross was sitting in the driver's seat, and defendant Robinson was in the passenger's seat. Officer Krug opened the driver's door, and immediately smelled a strong odor of marijuana coming from inside the car. Officer Krug removed Ross from the car and placed him in handcuffs. Meanwhile, as Officer Hernandez approached the passenger side door, defendant Robinson suddenly reached for the glove compartment. He stopped only when the officers stood next to that door. Officer Hernandez opened the door and removed Robinson from the car. He, too, smelled marihuana coming from inside the car. Officer Hernandez observed two iPhones and a belt on the car floor. The officers did not find a gun on either Ross or Robinson. Officer Hernandez opened the unlocked glove box by the passenger seat. There was a loaded, silver, 25-caliber handgun in that glove box. Officer Krug found $14.00 inside the car as well.
Mr. Goode and Ms. Charles had remained in Officer Krug's patrol car. Mr. Goode was "enraged" and wanted to leave the patrol car. Officer Krug went back to his patrol car after the defendants had been removed from their car and were in handcuffs. Ms. Goode and Ms. Charles confirmed the defendants were the individuals who had robbed them. The defendants were then placed under arrest. Officer Krug recovered nine bags of marijuana from defendant Ross' front right pocket.
The defendants were brought back to the 40th precinct. At about 10:15 a.m, Detective Vincent Virbukas interviewed defendant Robinson in the 40th precinct detective squad interrogation room. The detective did not have his gun with him. Defendant Robinson had one [*3]hand cuffed to a bench. Detective Virbukas read defendant Robinson his Miranda warnings from a pre-printed form. The defendant indicated he understood each Miranda right. The detective wrote the word "Yes," after each warning, indicating the defendant said he understood that right. The defendant wrote his initials, TR, after each "yes" marking. The defendant and the detective both signed the Miranda form. After all necessary Miranda warnings were read, defendant Robinson said, "I told him to turn off the phone in the car."
CONCLUSIONS OF LAW
In order for an individual to be charged with criminal possession of stolen property, there must be probable cause to believe that a person "possessed" property that the person "knew" to be stolen, with intent to benefit someone other than the owner of such property or to "impede the recovery by" the property's owner. PL § 165.40; see People v. Charles, 31 AD3d 657, 658 (2nd Dept 2006). A person in "recent, exclusive" and unexplained possession of the fruits of a crime, such as stolen property, permits the presumption to be drawn that the person in possession knew the items were stolen. People v. Baskerville, 60 NY2d 374, 382-83 (1983); see People v. Galbo, 218 NY 283, 290 (1916).
In this case, two crime victims reported to the police that their iPhones had been stolen. One of the men brandished a gun. The perpetrators were physically decribed in a vague manner — they were two black men in a black two door car. The police had no clothing description of either man, and no make, model or license plate of the car. The perpetrators fled the scene of the robbery in that car, iPhones in hand. They had any number of escape routes at their disposal; within minutes of completing the robbery, they could have driven across the Triborough Bridge and headed to Queens and Long Island; they could have taken a highway to Westchester County; they could have taken any number of streets and secreted themselves in any Bronx neighborhood they desired; in minutes, they could have even driven to New Jersey across the nearby George Washington Bridge.
While the police had little traditional information to track the perpetrators, they did have powerful technology available to assist them in locating the stolen property and perhaps apprehend the perpetrators. The "Find My iPhone" app allows real-time tracking of an iPhone's location by its owner. And the owner of that phone, Mr. Goode, allowed the police to use his app for that very purpose. The app gave the police immediate information about the path the iPhone had taken. It had indeed left the Bronx and crossed the Harlem River into upper Manhattan. Armed with this information, the police had a legal and constitutional reason to trace that path, and find the phone. The fact that Officer Krug used his own phone to conduct the tracking is irrelevant; the defendant has no standing to challenge the tracking of Mr. Goode's stolen iPhone. See People v. Ladson, 298 AD2d 314, 315 (1st Dept 2002); People v. Hammond, 47 AD3d 644 (2nd Dept 2008); see also People v. Moorer, 39 Misc 3d 603, 606 - 609 (Monroe County Court 2013).
Once the tracking pinpointed the phone's location, the police officers were obligated to go to that location. Despite the paucity of the physical descriptions, Officer Krug could rely on the proven technology inherent in iPhone tracking, and thus had probable cause to believe the two men he observed in the two door black sedan parked at the very location disclosed by the app were, if not the perpetrators of the robbery themselves, at least in recent possession of Mr. Goode's stolen iPhone. The spontaneous, and understandably enraged identifications made by Mr. Goode and Ms. Charles as the defendants and their car came into view gave the officers [*4]probable cause to charge the defendants with armed robbery.
The recovery of the stolen items in the vehicle was also proper. First, as to the Burberry belt, the two iPhones, and currency, all those items were in plain view on the floor of the car. The officers were justified in approaching the vehicle, even had the victims not already identified the defendants. They were able to observe the phones, the belt and the cash from the outside of the car. See People v. Manganaro, 176 AD2d 354, 355-56 (2nd Dept. 1991). Officer Hernandez's warrantless search of the glove box was proper. The police had probable cause to believe the car was used in the commission of the robbery. They had reason to believe the perpetrators were armed with a silver handgun. Both defendants were searched after being removed from the car and neither was in possession of the gun. Defendant Robinson had made a furtive movement toward that very glove box when the officers approached. Thus, Officer Hernandez was justified in searching that closed, unlocked glove box. See People v. Langen, 60 NY2d 170, 172 (1983); People v. Etheridge, 175 AD2d 739-40 (1st Dept 1991). He was also justified in searching it under the automobile exception to the warrant requirement, especially after the police officers smelled the strong odor of marihuana coming from within the car as soon as they opened the doors to remove the defendants. See People v. Blasich, 73 NY2d 673, 680-81 (1989); People v. Ventura-Almonte, 78 AD3d 524, 525 (1st Dept. 2010). Accordingly, the motion to suppress physical evidence found in the car is denied in its entirety.[FN2]
Mr. Goode's and Ms. Charles's viewing of the defendants in handcuffs after they were removed from the car was not unduly suggestive. First of all, they had already voiced their own spontaneous identification of the defendants as the police officers approached the car. See People v. Burgos, 246 AD2d 394 (1st Dept 1998). In any event, while the identification took place in Manhattan, and the crime occurred in the Bronx, to the extent that this was a police-arranged identification procedure, it was not unduly suggestive; it occurred within a short time of the crime and the defendants chose to drive into another borough. See People v. Hudson, 71 AD2d 1046, 1047 (2nd Dept. 2010). Accordingly, the motion to suppress the witness's corporeal identification of defendant is denied as well.
Finally, defendant Robinson's motion to suppress his post-arrest statement is denied. While the statement was custodial, it was made after he knowingly and voluntarily waived his Miranda rights. The statement made was not the subject of any threats or coercion, and was voluntarily made in every regard. It also showed profound self-awareness — defendant's indication that he told co-defendant Ross to turn off the phone shows how criminal defendants, as well as the police, are aware of the powerful law enforcement tool available to track of a crime victim's stolen smart phone. Had the phone been merely turned off, or its own apps somehow become encrypted by any additional technology installed by the manufacturer, its recovery would have been much more difficult.
This constitutes the Decision and Order of the Court.
Dated: February 24, 2016
_______________________________
Hon. Ralph Fabrizio Footnotes
Footnote 1:Defendant Ross pled guilty after the second witness testified at the hearing, and waived his right to a ruling on his own suppression motion.
Footnote 2:Defendant Robinson has no standing to challenge the marihuana removed from co-defendant Ross's pocket after arrest.
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