People v Bower

[*1] People v Bower 2017 NY Slip Op 51112(U) Decided on September 7, 2017 Supreme Court, Bronx County Iacovetta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2017
Supreme Court, Bronx County

People of the State of New York, Plaintiff,

against

Brian Bower, Defendant.



672/16



For the People: ADA Peter Naber

For Defendant: The Legal Aid Society, Joshua Hadas, Esq.
Nicholas Iacovetta, J.

On June 15, 2017, this court commenced a previously ordered Mapp/Huntley/Dunaway hearing. The People called one witness, P.O. Ronnie Mejia. This court's findings of fact and conclusions of law are as follows.

FINDINGS OF FACT

On February 24, 2016, P.O. Ronnie Mejia was assigned to work the plain-clothes Anti-Crime Unit within the 45 Precinct in Bronx, New York. Prior to leaving for his tour, a Sergeant Marks, P.O. Mejia's Field Intelligence Officer, informed P.O. Mejia that a person Sgt. Marks arrested on August 23rd informed the sergeant that there was a white male, six feet tall, with a tattoo on his neck, known to carry a gun in the vicinity of 1525 Plymouth Avenue, Bronx, New York. P.O. Mejia then went out on his tour with Sgt. Martinez and Officer McMahon in an unmarked vehicle. P.O. Mejia was riding in the rear passenger side. Sgt. Martinez was the driver. P.O. McMahon was seated in the front passenger seat.

At approximately 7:20 pm, the officers were in the vicinity of Plymouth Avenue and Zulette Avenue, Bronx, New York when P.O. Mejia observed the defendant standing on the corner of the intersection of Plymouth and Zulette Avenues, looking back and forth, and noticed that the defendant's arm was "just like concentrating in his waistband area," making "little subtle taps I guess making sure that it is still there" (Hearing Transcript, 6/15/17, pg 13, Lines 24-25; pg 14, Lines 24-25). When P.O. Mejia looked down at defendant's waistband area, P.O. Mejia [*2]observed an L-shaped bulge, which, in P.O. Mejia's experience, indicated the defendant had a weapon in his waistband (Hearing Transcript, 6/15/17, pg 12, Lines 12-18; pg 14, Lines 19-25; pg 15, Lines 1-9).

The officers drove closer to the defendant. From inside the car, P.O. Mejia opened his window, identified himself as the police and asked the defendant if he lived in the area. Defendant responded "very defensively" and asked, "Why you questioning me? Why you stopping me?" P.O. Mejia responded, "Sir, I'm the police. I just want to task you a couple of questions. I just want to ask, see if you live around here. I just want to find out do you live in the area. We are the police." At that point the defendant turned his body and put his hand in or on his waistband, appearing to cover the area (Hearing Transcript, 6/15/17, pg 12, Lines 23-25; pg 14, Lines 10-20). He then responded and said, "No, why you want to ask me questions?" As defendant turned away P.O. Mejia noticed a tattoo on defendant's neck. P.O. Mejia then began to step out of the police car at which point the defendant started to walk away at a fast pace northbound on Plymouth Avenue while the police vehicle was facing south. P.O. Mejia stepped back into the police vehicle and, as the driver began to put it in reverse to follow the defendant, the defendant quickly increased his pace and started running away while continually holding his waistband area (Hearing Transcript, 6/15/17, pg 21, Lines 16-19; pg 22, Lines 10-14). P.O. Mejia then exited his vehicle and began pursuing him. The defendant then ran into 1525 Plymouth Avenue. P.O. Mejia followed him, and stopped him in the vestibule. Defendant struggled and continued reaching for his waistband area. Fearing for his safety, P.O. Mejia took defendant's arms and put them on the wall. P.O. Mejia's partner came in and they both subdued the defendant. P.O. Mejia then reached down to defendant's waistband where he previously saw the L-shaped bulge and felt a hard object he believed to be a weapon. He then recovered a loaded firearm from defendant's waistband. P.O. Mejia then asked defendant, "Why do you have a big ass gun" to which defendant responded "You guys, I need it for protection. You guys don't do nothing. I got jumped out here. I got jumped out here last month. I got shot at here. You guys don't do nothing."

CONCLUSIONS OF LAW

Physical Evidence

On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance (see People v Whitehurst, 25 NY2d 389, 391 [1969]). Once the People have met their initial burden, the defendant bears the ultimate burden of establishing the illegality of the search and seizure by a fair preponderance of the evidence (see People v Berrios, 28 NY2d 361 [1971]). The People met their burden through the credible testimony of their witness. The defense did not meet its burden. While the defense maintains there were inconsistencies in the testimony, the Court finds that the People's witness gave consistent accounts of the major, salient points concerning defendant's seizure.

This court must assess the propriety of this police initiated encounter under the four tiered framework set forth in People v DeBour, 40 NY2d 210 [1976], and reaffirmed in People v Hollman, 79 NY2d 181 [1992]:

"If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is [*3]'activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion.' Where a police officer has a reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized" People v McIntosh, 96 NY2d 521, 525 [2001], citing People v Hollman, 79 NY2d at 184-185, quoting People v DeBour, 40 NY2d at 223).

Reasonable suspicion is the "quantum of knowledge sufficient to induce a reasonably prudent and cautious person under the circumstances to believe that criminal activity is at hand" (see People v Cantor, 36 NY2d 106, 112-113 [1975]).

The reasonableness of police conduct pursuant to a street encounter is determined by "a weighing of the government's interest against the encroachment involved with respect to an individual's right to privacy and personal security" (People v DeBour, 40 NY2d 210, 215 [1976]). This balancing process requires a court to consider "whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible" (id.).

An informant's tip may provide the police with probable cause necessary for an arrest if the People establish that the information satisfies the two-pronged Aguilar-Spinelli test by demonstrating the informant's basis of knowledge and reliability (see People v Rodriguez, 52 NY2d 483, 483-489 [1981]. Where police action requires only reasonable suspicion rather than probable cause, a lesser showing with respect to an informant's reliability and basis of knowledge suffices (see People v Herold, 282 AD2d 1, 4-5 [1st Dept 2001], lv denied 97 NY2d 682 [2001].

The informant in this case was reliable. An officer in the field may presume the reliability of information received from a fellow officer (see People v McLaurin, 43 NY2d 902 [1978], reversing on dissenting opinion 56 AD2d 80, 84 [1st Dept 1977]). The informant was not anonymous but instead an identified citizen, albeit an arrestee. An identified citizen informant is presumed reliable (see People v Brown, 288 AD2d 152 [1st Dept 2001], lv denied 97 NY2d 727 [2002]; People v Parris, 83 NY2d 342, 350 [1994]). Since this informant knew the police could reestablish contact with him or her, the informant exposed himself or herself to greater accountability via the risk of further prosecution if the information provided by the informant proved false which further enhanced the informant's reliability (see People v Hicks, 38 NY2d 90, 94 [1975]). Where police action requires reasonable suspicion rather than probable cause, a lesser showing with respect to an informant's reliability and basis of knowledge suffices (see People v Herold, 282 AD2d 1, 4-5 [1st Dept 2001], lv denied 97 NY2d 682 [2001]).

Even though the information was reliable, it was not sufficient by itself to furnish probable cause for an arrest or reasonable suspicion for a forcible stop because the People did not establish the informant's basis of knowledge (i.e., whether it was based on personal observation or just a rumor or hunch). The description of the suspect was also by itself too general to satisfy police action for an arrest or forcible stop (see People v Dubinsky, 289 AD2d 415 [2001]; People v Stewart, 41 NY2d 65, 69 [1976]).

Even an anonymous tip, however, giving only a general description and the location of an individual with a gun permits a Level Two common-law inquiry by the police (see People v [*4]Bora, 191 AD2d 384, 385 [1st Dept 1993], aff'd 83 NY2d 531 [1994]).[FN1] Upon receiving the information generated by the informant, the police were duty bound to take action (see People v Salaman, 71 NY2d 869, 870 [1988]; People v Benjamin, 51 NY2d 267, 270 [1980]).

When P.O. Mejia initially arrived at the location of the tip, he did not initiate any encounter with the defendant who matched the description of a white male at the exact location provided by the informant. Instead, he merely observed defendant from inside his police vehicle. This court credits the officer's testimony that the defendant was already standing on the corner when the officer arrived, i.e., the officer did not stop the defendant. The officer's conduct was unobtrusive and did not limit the defendant's freedom of movement (see People v Bora, 83 NY2d 531 [1994]; People v Thornton, 238 AD2d 33 [1st Dept 1998]).

P.O. Mejia's observation of defendant looking back and forth with his arm concentrated in his waistband area and the L-shaped bulge in defendant's waistband which the officer, based on his experience, believed was a gun, coupled with the informant's tip of a white male with a gun at the same location, established reasonable suspicion allowing a forcible stop and frisk under Level Three of De Bour. This is not the situation of an unidentifiable bulge which alone is not sufficient to establish reasonable suspicion justifying a stop and frisk (see People v Kennebrew, 106 AD3d 1107, 1109 [2d Dept 2013], lv denied 22 NY3d 1088 [2014]). Instead this is a case where the court credits the officer's testimony that he believed the outline of an L-shaped object in defendant's waistband was a gun. This established the reasonable suspicion necessary for a forcible stop (see People v McClendon, 92 AD3d 959 [2d Dept 2012], lv denied 19 NY3d 865 [2012]; People v Thanh Do, 85 AD3d 436 [1st Dept 2011], lv denied 17 NY3d 905 [2011]; People v Henderson, 85 AD3d 663 [1st Dept 2011], lv denied 17 NY3d 953 [2011]).

P.O. Mejia, however, demonstrated restraint by making only a Level One request for information. His request was based upon information he received in the tip and his own observations. It was not based upon a subjective hunch or whim. Again, the officer did nothing to restrict defendant's freedom of movement. He remained in his vehicle, identified himself as a police officer, and asked defendant if he lived in the area. When the defendant, acting defensively by questioning the officer's authority, replied that he did not, the officer noticed the tattoo mentioned by the informant on defendant's neck as the defendant put his hand in or on his waistband while turning his body away from the officer. The defendant then began walking quickly and then running away from the officer before or just as the officer was exiting his vehicle, and before the officer put the vehicle in reverse. Reasonable suspicion, if not already established, now existed (see People v Fletcher, 130 AD3d 1063, 1065 [2d Dept 2015], aff'd 27 NY3d 1177 [2016]). The Court of Appeals has noted a "handgun is often carried in the waistband" (People v Benjamin, 51 NY2d at 271[1980]).

The predicate for police pursuit is reasonable suspicion that a crime has been, is being, or is about to be committed (see People v Holmes, 81 NY2d 1056, 1057-1058 [1993]). A suspect's flight alone, even in conjunction with equivocal circumstances that might justify a police request for information, in insufficient to justify pursuit (id. at 1058). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, [*5]could provide the predicate necessary to justify pursuit (id. at 1058).

Reasonable suspicion existed for P.O. Mejia to pursue and stop the defendant after he began walking quickly and then running away from the officer while holding his waistband (see People v Sierra, 83 NY2d 928, 929-930 [1994]; People v Pitman, 102 AD3d 595, 596 [1st Dept 2013], lv denied 21 NY3d 1018 [2013]; People v Byrd, 304 AD2d 490 [1st Dept 2003], lv denied 100 NY2d 579 [2003]).

A frisk is permissible only if the police possess a particularized reasonable suspicion that a suspect "is armed and may be dangerous" (People v Russ, 61 NY2d 693, 695 [1984]). When P.O. Mejia touched a hard object in defendant's waistband which felt like a gun, it was lawful for him to remove it from his waistband. Once the gun was recovered, reasonable suspicion ripened into probable cause for defendant's arrest.

Defendant's motion to suppress the firearm is therefore denied.

Statement

In a hearing to suppress a statement the People must demonstrate that it was not the product of an unlawful seizure, and they have the burden of demonstrating beyond a reasonable doubt that the statement was voluntary (see People v Huntley, 15 NY2d 72 [1965], People v Witherspoon, 66 NY2d 973 [1985]). Miranda warnings are not required unless both elements of "custody" and "interrogation" are present (see Miranda v Arizona, 384 US 436 [1966]; People v Huffman, 41 NY2d 29, 33 [1976]).

Defendant's motion to suppress his responses to P.O. Mejia's questions while they were on the street as the fruit of an unlawful seizure is denied. Miranda warnings are required only when a suspect is subjected to "custodial interrogation" (see People v Huffman, 41 NY2d 29, 33 [1976]). The defendant was not in custody when he was standing on the street corner and P.O. Mejia asked him if he lived in the area. This initial question did not amount to interrogation. It and any further unsuccessful attempts by P.O. Mejia to question defendant about his residence were a lawful Level One inquiry under De Bour supported by an objective, credible reason, not necessarily indicative of criminality, rather than an attempt to elicit evidence of a crime (id. at 34; People v Johnson, 46 AD3d 276, 277 [1st Dept 2007], lv denied 10 NY3d 865 [2008]; People v De Bour, 40 NY2d at 223 [1976]).

However, defendant's motion to suppress defendant's response to P.O. Mejia's question after recovery of the weapon is granted. Although, as discussed above, the defendant was lawfully seized, P.O. Mejia's question, "Why do you have a big ass gun?" was asked before the issuance of any Miranda warnings and after defendant was already in custody and after the weapon was recovered. This question by the officer was one which under the circumstances would reasonably be expected to result in an incriminating response, and was not preceded by Miranda warnings (see People v Ferro, 63 NY2d 316 [1984]; People v Soto, 183 AD2d 926 [2d Dept 1992]; People v Walker, 129 AD3d 1590 [4th Dept 2015]). Since defendant was handcuffed and probable cause now existed for his arrest it was not necessary to ask defendant any other questions in order to clarify a volatile situation or to ensure the officers' safety (see People v Greer, 42 NY2d 170 [1977]; People v Huffman,41 NY2d 29 [1976]).

Defendant's motion to suppress his response to this question is therefore granted.

This opinion shall constitute the decision and order of this court.

DATED: September 7, 2017

Bronx, New York

Nicholas Iacovetta, AJSC Footnotes

Footnote 1:People v Morrow, 97 AD3d 991 [3d Dept 2012], cited by the defense, is inapposite because it addressed whether the description created reasonable suspicion for a Level Three stop and frisk.