People v Desmornes

[*1] People v Desmornes 2018 NY Slip Op 28239 Decided on July 24, 2018 Criminal Court Of The City Of New York, Queens County Kirschner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 24, 2018
Criminal Court of the City of New York, Queens County

The People of the State of New York, Plaintiff,

against

Julner Desmornes, Defendant.



CR-010575-17QN



Yanique Williams, Esq.

The Legal Aid Society

718-286-2061

Shannon Riordan

Assistant District Attorney

Office of the Queens District Attorney

718-286-6015
David J. Kirschner, J.

On June 7, 2018, a Mapp/Dunaway hearing was held in Part T-2 of Queens County Criminal Court. At the close of the hearing, the parties were directed to submit memoranda of law to the Court in support of their respective positions. After review of the arguments contained in those filings, the accusatory instrument and other papers on file with the Court, the entirety of the record, and prior court proceedings, this Court granted defendant's motion to suppress by decision and order dated July 19, 2018. That decision and order is recalled and replaced by this decision and order dated July 24, 2018, also granting defendant's motion to suppress.

I. Background and Procedural History

On March 18, 2017, at approximately 4:00 PM, Police Officers Loverdi (PO Loverdi) and Olivares (PO Olivares) of the Metropolitan Transit Authority Police responded to Sergeant Singh's (Sgt Singh) request for the assistance of an additional unit in front of Jamaica Station at 93-02 Sutphin Boulevard, Queens County. Upon arriving at that location, the officers observed a [*2]white sedan with no occupants illegally parked in an active bus lane. Both Sgt Singh and defendant informed the officers that the car belonged to defendant.

The three officers requested pedigree information from defendant a combined total of approximately 15 times. Defendant refused each request and instead asked the officers for their identification. The officers then attempted to rear cuff defendant to take him aside, ascertain his identity, run a warrant check, and inquire after the reason for his illegal parking. Defendant tucked his hands into his armpits to prevent the officers from placing him in handcuffs. While attempting to rear cuff defendant, PO Loverdi cut his finger on the car keys defendant was holding. Defendant subsequently dropped his keys during the ensuing struggle. By the time the officers managed to rear cuff defendant, the attempted investigative detention had evolved into an arrest. After defendant had been rear cuffed, PO Olivares collected defendant's keys from the ground and took the keys and defendant for processing.

By an accusatory instrument filed on May 2, 2017, defendant was charged with assault in the third degree (Penal Law § 120.00 [3], a class A misdemeanor), obstructing governmental administration (Penal Law § 195.05, a class A misdemeanor), resisting arrest (Penal Law § 205.30, a class A misdemeanor), and parking in violation of a posted sign (Vehicle and Traffic Law § 1200 [D], a violation).

As noted, a Mapp/Dunaway hearing was held on June 7, 2018, to determine whether the evidence obtained is the fruit of an improper search and seizure in violation of the Fourth Amendment's warrant requirement, and the Fourteenth Amendment's Due Process Clause (US Const Amends IV, XIV; see also NY Const, art I, § 6). The People presented PO Olivares as their only witness; defendant called no witnesses. This Court finds the testimony of PO Olivares credible to the extent indicated herein. At the close of his testimony, the Court directed the parties to submit written memoranda in lieu of oral arguments.

Defendant contends that the People have failed to make a showing of probable cause for defendant's March 18 arrest, and accordingly, that the physical and testimonial evidence are the product of an unlawful search and seizure, thus requiring suppression.

The People contend that there was no Fourth Amendment violation. They argue that CPL 140.10 authorizes a police officer to arrest an individual even for a parking violation. The People further argue that there was probable cause for defendant's arrest based on the car being illegally parked in front of the main entrance of Jamaica Station, defendant's admission that he owned the car, and defendant's refusal to provide pedigree information. The People submit that the arrest was not only authorized, but required. Premised on the validity of this arrest, the People contend that the warrantless seizure is proper under the plain view doctrine, and alternatively, as incident to a lawful arrest.

II. Discussion

On a motion to suppress evidence secured by the police, the initial burden falls on the People to make a showing of probable cause (People v Hernandez, 40 AD3d 777, 778 [2d Dept 2007], first citing People v Berrios, 28 NY2d 361, 367-368 [1971], and then citing People v Moses, 32 AD3d 866, 868 [2006] ["[T]he People bear the burden of going forward to establish the legality of police conduct in the first instance."]). Once the People make this showing, the burden of proving the illegality of police conduct falls to defendant (see People v Baldwin, 25 NY2d 66, 70-71 [1969]). If the People fail to meet their initial burden of proving that both the search and the arrest are lawful, or defendant meets the ultimate burden of proving the [*3]unlawfulness of the search or seizure, the evidence must be suppressed (see generally Mapp v Ohio, 367 US 643 [1961]; Dunaway v New York, 442 US 200 [1979]). Thus, the People's arguments that the search in the instant case falls under one of those "few specifically established and well-delineated exceptions" to the per se unreasonableness of warrantless searches need not be reached if the arrest is determined unlawful (Katz v United States, 389 US 347, 357 [1967]; see also People v Cantor, 36 NY2d 106, 114 [1975] ["Having concluded that the initial seizure of the defendant was unlawful, the fruits of that unconstitutional seizure must be suppressed."]; People v Edmond, 17 Misc 3d 1130[A], 2007 NY Slip Op 52212[U], *9 [Sup Ct, Queens County 2007], citing People v Hicks, 68 NY2d 234 [1986] ["The arrest of an individual, and any search made incident to the arrest, are unlawful unless supported by probable cause."]).

In attempting to justify the officers' actions, the People confuse distinct legal theories and obfuscate the factual allegations. The People argue that defendant's arrest was authorized by CPL 140.10 (2) (a), which permits arrests where an officer has reasonable cause to believe a petty offense was committed in his or her presence, and CPL 1.20 (39), which defines traffic infractions and violations as petty offenses. The People further assert that the combined force of defendant's claim of ownership of the vehicle in the bus lane, the location of the bus lane, and defendant's refusal to provide additional information provided the officers with probable cause to arrest defendant.

It is necessary to clearly define the People's arguments. Though their reply papers leaves some ambiguity, the People are presumably arguing, first, that Officers Loverdi and Olivares were authorized by statute to arrest defendant for parking illegally. Under this theory, the officers only required reasonable cause to believe that defendant parked illegally; the location of the bus lane and defendant's refusal to provide additional information are irrelevant. The People's second argument is that the claim of ownership, location of the vehicle, and refusal to provide additional information provided the officers with probable cause for an arrest. Specifically, the People ostensibly assert that the basis for establishing probable cause lies somewhere between terrorism and garnering police suspicion. These arguments will be addressed in turn.

A. Defendant's Parking Violation as Justification for the Arrest

The interpretation of the statutory authority offered by the People is correct in that CPL 140.10 (2) (a) and 1.20 (39) authorize a police officer to arrest a person for even a minor traffic violation (see, e.g., People v Spencer, 130 AD2d 882 [3d Dept 1987]; People v Terrero, AD2d 830 [3d Dept 1988]). The New York Court of Appeals has made clear, however, that it maintains a strong preference against custodial arrests in response to minor traffic violations where there is a reasonable summons alternative available (People v Howell, 49 NY2d 778, 779 [1980] ["An arrest in a situation such as was presented in this case was neither called for nor the preferred procedure"]; People v Copeland, 39 NY2d 986 [1976] [finding arrest proper in the absence of available pedigree on which to prepare a uniform traffic summons]). Moreover, a search made incident to such an arrest may be unlawful (People v Troiano, 35 NY2d 476, 478 [1974]). Though the Court has held arrests lawful even for minor traffic infractions where there is a summons alternative, it has not yet reached the instant facts: a car parked in a bus lane with its ignition off, no occupants, and a summons alternative that did not require defendant be identified. One readily available alternative here, presumably, would have been to issue a parking ticket, which would not have required defendant's pedigree information (but cf. People v [*4]Ellis, 62 NY2d 393, 96 [1984] ["Once it became evident that the defendant could not be issued a summons on the spot because of his inability to produce any identification, the officers were warranted in arresting him"]). There has been no showing by the People regarding the necessity of an arrest rather than issuance of a parking ticket or ordering the vehicle towed and impounded. As such, a custodial arrest in this situation was neither the correct nor the prudent course of action.

Even assuming that an arrest would have been authorized based on defendant's parking violation, which it was not, this arrest was still unlawful. Defendant acknowledged the parking violation. And, unlike a moving violation, a vehicle operator's pedigree is not required for the issuance of a parking ticket. Thus, detaining defendant to discover his motivations for parking and "make sure he's not wanted" was unnecessary in relation to such parking violation and subject to exclusion in relation to a different crime. "The existence of crime on our streets . . . does not alone furnish a basis to disregard fundamental constitutional rights and liberties" (People v Gonzalez, 115 AD2d 73, 83 [1986], affd 68 NY2d 950 [1986]).

More important than the dubious legality of an arrest predicated on such grounds is the fact that PO Olivares' testimony at the June 7 hearing made explicit that the parking violation was not the motivation for apprehending defendant. PO Olivares testified that "we tried to rear cuff him to find out who he actually is." Expounding on that, the officer stated:

"He wasn't providing any pedigree. So our procedure is, we have some suspicion, like he is stating it is his vehicle, but he doesn't want to move it. We try to rear cuff him to take him to the side, and we try to get a warrant check, make sure he's not wanted, and [ascertain] the reason behind the illegally parked car." [emphasis added]

To be quite emphatic, PO Olivares testified that when an officer harbors "some suspicion" and the subject of his suspicion refuses to provide information the officer requests, it is the procedure of the MTA police to forcibly restrain and detain the subject to extract the desired information. "Although probable cause requires less proof than . . . a conviction, it does mean more than mere suspicion" (People v Wharton, 60 AD2d 291, 293 [2d Dept 1977]). It is perhaps an understatement to say that any police procedure of this kind, whether official or not, is anathema to the Fourth Amendment and abhorrent to the values held fundamental by our Constitution. "The proscription against unreasonable searches and seizures is designed to prevent random, unjustified interference with private citizens whether it is denominated an arrest, investigatory detention, or field interrogation" (Davis v Mississippi, 394 US 721, 722 [1969]).

Given the unlawfulness of an arrest pretextually predicated on defendant's parking violation, the People's second argument—that there was probable cause for a different offense—must be considered.

B. Probable Cause for a Different Crime

To evaluate the lawfulness of police action, courts must consider whether the conduct at issue "was justified in its inception and . . . reasonably related in scope to the circumstances which rendered its initiation permissible" (Cantor at 111 [emphasis supplied], first citing Terry v Ohio, 392 US 1, 19 [1968], then citing Cupp v Murphy, 412 US 291 [1973], and then citing People v Kuhn, 33 NY2d 203 [1973]). In People v De Bour (40 NY2d 210, 222-223 [1976]), the Court of Appeals delineated four levels of police intrusion and the circumstances under which [*5]such intrusions are justified. The first, and least intrusive, of these actions is an approach to request information. This is permissible when there is a credible reason—which need not indicate criminality—for the approach (id.). The second degree of intrusion, the common law right to inquire, allows interference "to the extent necessary to gain explanatory information, but short of a forcible seizure." This intrusion is justified when there is a founded suspicion of criminal activity (id.). The two other levels delineated by the De Bour Court are intrusions justified by statute (id.).

Criminal Procedure Law 140.50 (1) allows a forcible stop and detention of a person when an officer entertains a reasonable suspicion that the subject of the stop or detention is, was, or will imminently be, involved in the commission of a felony or misdemeanor. Criminal Procedure Law 140.50 (3) allows an officer to frisk a person who was detained pursuant to subdivision (1) when he reasonably suspects the detainee is armed and poses a physical threat. Criminal Procedure Law 140.10 authorizes the final, most intrusive level of police action. It permits an officer to arrest and take a person into custody when the officer has probable cause to believe that the person has committed a crime or that the person has committed an offense in his presence.

Viewing the evidence adduced in the light most favorable to the nonmovant, the officers' approach was justified at its inception. The approach was a request for information with an objectively credible reason. The officers attempted to ascertain information regarding the ownership of an illegally parked vehicle, presumably to affect the timely and orderly removal of the vehicle. When defendant claimed ownership of the car and refused to move it, the officers were justified in requesting defendant's pedigree (Terry at 34 ["There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets"]). Defendant was similarly acting within his rights when he declined to provide pedigree information (see id. ["Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest . . . ."]).

PO Olivares' testimony at the June 7 hearing reveals that he and his partner then attempted to rear cuff defendant to extract pedigree information and "make sure he's not wanted." Though there is a notable absence of any specific, articulable facts to establish "founded suspicion," this Court need not reach that issue, as the forcible seizure plainly exceeded the permissible degree of intrusion under the common law right to inquire (see Cantor at 114 ["The common-law power to inquire does not include the right to unlawfully seize]; see also Terry at 34 ["[T]he person approached may not be detained or frisked but may refuse to cooperate and go on his way."]).

Forcible seizure of defendant would be justified under CPL 140.50, and arrest under CPL 140.10, if the officers held a reasonable suspicion that defendant was committing, had committed, or would imminently commit a crime (see Cantor at 112-113 ["Reasonable suspicion is the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand."]). To justify this severe intrusion, an officer must proffer specific, articulable facts and inferences that prompted this suspicion (id. at 113, citing Terry at 20 ["Vague or unparticularized hunches will not suffice."]). Here, the record plainly reflects police action predicated on precisely such insufficient, unparticularized hunches. The People argue that the MTA officers deemed defendant's vehicle "suspicious." However, "it is the responsibility of the neutral court, not the police, to determine whether the latter were justified in making the serious intrusion that the deprivation of another's liberty constitutes. For [*6]that purpose, the court must be presented with facts, not assurances" (People v Bouton, 50 NY2d 130, 135-136 [1980]).

The facts proffered in support of the contention that the suspicion was reasonable and constituted probable cause are a vehicle in a bus lane near a major transportation hub and defendant's refusal to provide pedigree. Conspicuously absent from the testimony presented were any facts articulating that terror-related activity may have been afoot. A car parked outside of Jamaica Station is at least as likely to be waiting for an incoming family member as it is to be engaged in terror operations. "It is well settled that behavior which is susceptible of innocent as well as culpable interpretation does not constitute probable cause" (Wharton at 293, citing De Bour). As noted above, absent probable cause, answers may not be compelled, and refusal is not a basis for detention.

It is immaterial that the initial seizure was not intended, at its inception, to be an arrest. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person" (Dunaway at 207 n 6, citing Terry at 16). In fact, it is of additional concern that this unlawful seizure was carried out in multiple stages. Viewed in the light most favorable to the People, the record indicates that, at inception, these officers attempted in good faith to affect an investigatory detention on a shadow of a suspicion; that, when one of these officers "sustained a laceration to his finger" that caused "substantial pain," the officers believed that defendant negligently inflicted the laceration; that the officers then arrested defendant for his negligent failure to protect PO Loverdi from cutting himself while detaining defendant. Viewed in a neutral light, the record indicates that Officers Loverdi and Olivares, frustrated that defendant refused to waive his Fourth Amendment rights and respect their purported authority to compel defendant to identify himself, attempted to detain him; that an officer caused injury to himself on defendant's keys while affecting an unlawful detention; that, instead of reevaluating their actions leading up to that point, the officers thought it appropriate to charge defendant with resisting arrest, obstruction of governmental administration, and assault with a deadly weapon or dangerous instrument. Such a seizure can hardly be classified as "reasonable."

III. Conclusion

For the above reasons, it is the decision and order of this Court that defendant's motion to suppress be granted. As such, all physical, testimonial, and nontestimonial evidence obtained as fruits of defendant's unlawful arrest, including the keys collected by Officer Olivares and the officers' observations, is suppressed.

This constitutes the decision and order of the Court.

Dated: July 24, 2018

E N T E R

David J. Kirschner, J.C.C.