| People v Ketteles |
| 2009 NY Slip Op 04086 [62 AD3d 902] |
| May 19, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JerryKetteles, Also Known as Jerry Kettrles, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered September 13, 2006, convicting him of burglary in the second degree and petit larceny,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Dowling, J.), of those branches of the defendant's omnibus motion which were tosuppress physical evidence and identification testimony. Justice Fisher has been substituted forformer Associate Justice McCarthy (see 22 NYCRR 670.1 [c]).
Ordered that the judgment is affirmed.
At a pretrial suppression hearing, Police Officer Elvis Vazquez testified that, while on patrolwith his partner in an unmarked police car, he observed the defendant standing on the other sideof the street, holding in his hand a glass pipe which the officer recognized as the type of pipecommonly used for smoking crack cocaine. The defendant then placed the pipe in his pantspocket. The officers approached the defendant, and Vazquez's partner reached into thedefendant's pocket and retrieved the pipe. The officers placed the defendant under arrest, and asearch of the defendant incident to the arrest yielded a screwdriver, a utility tool kit, twoflashlights, a pocketknife, a key ring holding between 30 and 40 keys, and a wallet containing,among other things, a MetroCard issued by the New York City Transit Authority. [*2]Vazquez turned the evidence over to Detective William Van Pelt,who, upon investigation, discovered that the MetroCard recovered from the defendant had beenpurchased with a debit card belonging to the victim of a recent burglary. The burglary victimviewed a lineup, and identified the defendant as the person who had burglarized her home. Aftera jury trial, the defendant was convicted of burglary in the second degree and petit larceny.
The Supreme Court properly denied those branches of the defendant's omnibus motionwhich were to suppress physical evidence and identification testimony as the fruits of an illegalsearch and seizure. The defendant does not challenge Vazquez's characterization of the object hesaw the defendant holding as a crack pipe, or Vazquez's testimony that he had previously seenpipes of that type and was aware that they are used for smoking crack cocaine, and we perceiveno reason to disturb the Supreme Court's determination to credit Vazquez's testimony. A crackpipe is a telltale sign of narcotics possession (see People v Edwards, 160 AD2d 501[1990]; cf. People v Alexander, 37 NY2d 202 [1975]; People v Goggans, 155AD2d 689 [1989]). The defendant's possession of a such a pipe in plain view in a public placegave the arresting officers reason to believe that the defendant unlawfully possessed a controlledsubstance, consisting of, at least, crack cocaine residue (see People v Edwards, 160AD2d at 501). The officers, therefore, had probable cause to arrest and search the defendant(see People v Manigault, 247 AD2d 255 [1998]; People v Goggans, 155 AD2d at690-691). We further note that Vazquez testified that, several months earlier, he had arrested thedefendant at the same location for possessing cocaine residue.
As noted by our dissenting colleague, the Court of Appeals has recognized that, although aglassine envelope is a "telltale sign of heroin" since it is a container in which heroin is frequentlysold (People v McRay, 51 NY2d 594, 601 [1980]), a person's mere passing of such anenvelope, without more, does not establish probable cause to believe that the person has engagedin a sale of narcotics, because—although it is rarely the case in the context of on-the-streetexchanges—such an envelope also has legitimate uses (see People v McRay, 51NY2d at 601-604; People v Oden, 36 NY2d 382, 385 [1975]; People v Corrado,22 NY2d 308, 313 [1968]). In this case, however, the defendant was seen holding a pipeused for smoking crack cocaine, not a potentially innocuous object like an envelope. Moreover,the arresting officers needed only probable cause to believe that the defendant was in possessionof narcotics, not that he had engaged in a sale of narcotics (see People v Eldridge, 103AD2d 470, 474 [1984]). While a crack pipe is not a container in which narcotics are sold, and itspossession is not itself a criminal offense, such a pipe is a device for ingesting narcotics, insidewhich the officers could reasonably expect to find at least traces of a controlled substance. It isundisputed that Vazquez recognized the object possessed by the defendant as a crack pipe, whichdistinguishes this case from People v Richie (77 AD2d 667 [1980]), where it was notimmediately apparent to the arresting officers that the silver metal pipe in the defendant'sautomobile was evidence of his possession of marijuana.
Contrary to the defendant's contention, the police officers' failure to voucher the MetroCardrecovered from his wallet did not prevent the People from establishing that the MetroCardpurchased with the complainant's debit card and the MetroCard recovered from the defendantwere one and the same. The circumstances presented in this case—where Vazquez seizedthe wallet from the defendant and maintained possession of it, without removing the MetroCard,until he turned it over to Van Pelt, and Van Pelt recorded the serial number of the MetroCard andplaced the card in the case folder relating to the defendant's case—provide " 'reasonableassurances of the identity and unchanged condition' of the evidence" (People v Julian, 41NY2d 340, 343 [1977], quoting Amaro v City of New York, 40 NY2d 30, 35 [1976]).[*3]Thus, any deficiencies in the chain of custody did not renderthe MetroCard and the related evidence inadmissible (see People v Julian, 41 NY2d at344).
The defendant's contention that the Supreme Court erred in permitting the People to elicithearsay testimony from Van Pelt and the complainant is unpreserved for appellate review, sincethe defendant's only two objections to the complained-of testimony were sustained by the court,and the defendant did not thereafter request any curative instructions or a mistrial (see Peoplev Heide, 84 NY2d 943 [1994]; People v Merchant, 150 AD2d 730, 731 [1989]).Similarly, the defendant failed to preserve for appellate review his contention that the courterroneously permitted Van Pelt to testify that the defendant's possession of a card containing theMiranda warnings (see Miranda v Arizona, 384 US 436 [1966]) was typical of aperson who had been arrested in the past, since the court subsequently delivered a curativeinstruction and struck the testimony at issue from the record, and the defendant did not object tothe adequacy or timing of the court's corrective action (see People v Everson, 100 NY2d609 [2003]; People v Heide, 84 NY2d at 944; People v Williams, 46 NY2d 1070[1979]). Nor did the defendant preserve for appellate review his contention that the Peopleelicited testimony suggesting that he had a propensity to commit burglaries, since he voiced noobjection to the challenged testimony. The defendant's further contention that the prosecutorimproperly elicited testimony about the contents of certain documents which the court hadprecluded from evidence is also unpreserved for appellate review and, in any event, is withoutmerit.
The defendant was not deprived of his right to the effective assistance of counsel (seeStrickland v Washington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137, 147[1981]).
The defendant's remaining contention is without merit. Prudenti, P.J., Spolzino, and Fisher,JJ., concur.
Leventhal, J. (dissenting and voting to reverse the judgment, grant those branches of thedefendant's omnibus motion which were to suppress physical evidence and identificationtestimony, and remit the matter to the Supreme Court, Kings County, for an independent sourcehearing). I respectfully dissent. The physical evidence seized from the defendant and the lineupidentification should have been suppressed under the undisputed facts, as set forth below, as amatter of law.
The issue presented is whether a police officer's mere observation of the defendant firstholding and then putting a pipe, characterized as a crack pipe, in his pocket was sufficient toestablish probable cause for the officer to search the defendant.
The facts of the search are as follows: Police Officer Elvis Vazquez, a member of the NewYork City Police Department's 71st Precinct Burglary Apprehension Unit, was on patrol in anunmarked car with his partner Police Officer McCarthy early in the morning of October 7, 2005.At approximately 2:40 a.m. Vazquez observed the defendant across the street from the unmarkedpatrol car in front of 681 Flatbush Avenue in Brooklyn, holding a glass pipe in his right hand.Vasquez could not see whether there was residue in the pipe from his vantage point across thestreet. Vazquez did not see the defendant [*4]receiving the clearcrystal pipe from, or giving it to, another person. He concluded that there "appeared to be" crackin the pipe by the way the pipe was being held or "clutched." Vazquez did not know whether thedefendant saw him and his partner in the unmarked patrol car. When the car lights flashed on thedefendant, he put the pipe into his right pants pocket and started walking. It is unclear from therecord whether the defendant began to walk in the same direction that the officers were traveling.However, this is of no moment as there is no evidence of furtive behavior since Vazqueztestified, "I don't know if he [the defendant] saw us or not." The officers made a u-turn andpulled up in front of the defendant. Vazquez asked the defendant what he was doing, and thedefendant replied, "I am just chilling with my boy." Vazquez got out of the unmarked patrol carand directed the defendant to place his hands on top of a nearby car. McCarthy reached into thedefendant's right pants pocket and pulled out a 3½-to-4-inch clear crystal pipe with crackresidue in the bottom. The defendant was arrested, and a search incident to the arrest wasconducted, revealing the other items sought to be suppressed.
In People v McRay (51 NY2d 594 [1980]), the Court of Appeals articulated theminimum standard of proof necessary to establish probable cause when a police officer views a"telltale sign" of a drug transaction, such as the passing of a glassine envelope. The Court heldthat, in addition to a "telltale sign" like a "glassine envelope," there are other factors that shouldbe considered in determining whether probable cause exists, such as the "high incidence ofnarcotic trafficking in a particular community" (id. at 601), the "police officer'sexperience and training in narcotics investigations" (id. at 601), and, if money istransferred, the defendant's furtive or evasive behavior, and any "additional relevant behavior orcircumstances" (id. at 602, 604 [internal quotation marks omitted]).
The Court of Appeals, in People v Jones (90 NY2d 835, 837 [1997] [citationomitted]), later clarified its holding in McRay, stating "[a]lthough we recognized inMcRay that the passing of a 'telltale sign' of narcotics strongly suggests an illicit drugtransaction, we do not find a 'telltale sign' to be an indispensable prerequisite to probable cause."In Jones (id.), the detective "was unable to identify the object given to thewoman, but he observed other indicia of a drug transaction," such as the handling of the object ina manner typical of a drug sale or making use of a "stash." Furthermore, the transaction "tookplace in a drug-prone location and was observed by an experienced officer who was trained inthe investigation and detection of narcotics" (id.). Additionally, although the officer inJones only observed a "single transaction," there was other evidence in the record to"support the finding of probable cause" (id.).
This Court has also held that "[t]o establish probable cause to arrest the defendant. . . for a narcotics violation there had to exist indicia that a drug transaction wastaking place, other than the fact that the exchange took place in a drug-prone area and wasobserved by an experienced officer" (People v Mills, 145 AD2d 578, 578 [1988]). It wasthe "totality of circumstances," including the officer's experience, the fact that the defendant'sconduct occurred in a drug-prone area, the time of day, the number of hand-to-hand transactionsthat were observed (see People v Owens, 155 AD2d 696 [1989]), the buyer's disposal ofa bag, and his attempt to run from police (see People v Powell, 32 AD3d 544, 545 [2006]) that led to adetermination of probable cause.
The four cases cited by the majority, and the facts underlying those cases, are at variancewith the facts under review here. In fact, those cases support a finding of suppression. Eachcontains an additional factor other than the observation that the defendant merely possessed anobject that may be used to hold or to possess an illicit substance. In People v Alexander(37 NY2d 202 [1975]), the Court of Appeals affirmed [*5]thedenial of suppression of physical evidence. In addition to the police officer's observation of aquantity of glassine envelopes, which the arresting officer, who was trained and experienced innarcotics police work, described as a telltale sign of heroin, the Court relied heavily on thedefendant's dropping or throwing of the envelopes prior to the stop and search, by which thedefendant thereby evinced a consciousness of guilt upon seeing the approaching officer(id. at 203-204).
In People v Edwards (160 AD2d 501 [1990]), the defendant's vehicle was pulledover since he was driving with expired inspection and registration stickers. The defendant wasunable to produce the paperwork for the vehicle. The police officer asked the defendant to exitthe car. While the defendant was exiting, the officer observed a paper bag containing a glasstube. When he examined the tube more closely, he noticed the bag also contained another clearzip-lock bag containing a white powdery substance, which the officer believed to be cocaine.The defendant was arrested for possession of a controlled substance. During the search incidentto the arrest, a gun and live rounds of ammunition were recovered. The Appellate Division, FirstDepartment, held that there was probable cause for the arrest, as the arresting officer hadexperience making drug arrests and was familiar with drug paraphernalia, including crack pipes;the area in which the arrest was effected was a drug-prone location; and, under thosecircumstances, the observation of a glass pipe provided probable cause to believe that the pipecontained crack residue (id. at 502).
In People v Goggans (155 AD2d 689 [1989]), the police officer observed thedefendant, who was eight feet away, reach into a brown paper bag and remove a clear plastic vialcontaining a white powdery substance, which appeared to be crack cocaine. After displaying thecontents of the bag to a passing motorist and "after observing the approach of the officer, thedefendant placed the vial back into the paper bag, and began to walk away, concealing the bagunderneath his coat" (id. at 690). The officer, after ordering the defendant to stop,reached into the defendant's coat and found 11 vials, which appeared to contain crack cocaine.This Court held that probable cause existed to believe that the white powdery substancecontained in the clear plastic vial offered by the defendant to a passing motorist was crack, basedon the officer's previous experience, his possession of expert knowledge of the customs of drugdealers, and the usual appearance and packaging of drugs (id.).
The majority also cites People v Manigault (247 AD2d 255 [1998]), to support itsprobable cause finding. Although the opinion of the Appellate Division, First Department, in thatcase does not recite the underlying facts, an examination of the parties' appellate briefs revealsthat the detective observed "the defendant holding a plastic bag containing an inch-and-a-halflong yellow capped vial filled with a white powder in his slightly cupped right hand." TheAppellate Division, First Department, thus upheld the hearing's court finding of probable causeto arrest and then search the defendant.
It can be readily discerned that, in the absence of an additional factor other than theobservation of mere possession of an object suspected of being associated with drug possession,probable cause would not lie. Here, the totality of the circumstances fails, as a matter of law, toestablish probable cause to search the defendant. In People v De Bour (40 NY2d 210,223 [1976]) and People v Hollman (79 NY2d 181, 184 [1992]), the Court of Appeals setout a four-tiered method for evaluating the propriety of encounters initiated by police officers intheir criminal law enforcement capacity. Pursuant to these cases, Vazquez had, at best, the rightto stop and inquire (level two) as he may have had a founded suspicion that criminality was afootor perhaps reasonable suspicion (level three). However, the evidence presented is insufficient toestablish [*6]that Vazquez had probable cause (level four) tobelieve that the defendant had committed a crime and, therefore, to search him.
The sole fact that Vazquez relied upon to establish probable cause to search the defendantwas that, while driving at night, he saw the defendant from across the street with what the officercharacterized as a crack pipe, and that the defendant put it in his pocket. Vazquez describes thepipe as a "crack pipe," without providing the basis for his knowledge or experience. Theholdings in McRay and Jones require something more to establish probablecause than the mere observation of the defendant clutching a pipe and putting it in his pocket.The mere possession of a glass pipe that may be used to smoke crack is not a crime unless itcontains an illicit substance (see Penal Law art 220; see also Penal Law §220.50). For example, although a glassine envelope is a "telltale sign of heroin," the Court ofAppeals has never held that the mere passing of a glassine envelope, standing alone, establishesprobable cause (see People v Oden, 36 NY2d 382, 385 [1975]; People v Corrado,22 NY2d 308, 313 [1968]). Rather, "additional relevant behavior or circumstances [arenecessary] to raise the inference from suspicion to probable cause" (People v Oden, 36NY2d at 385; see also People v McRay, 51 NY2d at 601-602). It follows, then, that themere possession of a glassine envelope or a pipe which can be used to smoke an illegalsubstance does not amount to probable cause to believe that the holder of the envelope or pipe isin possession of an illicit substance.
Contrary to the holding of the majority, this Court has long held that even when a "pipe is inplain view, it cannot be said that it was immediately apparent that the pipe was either evidence orcontraband," and that items seized as a result of a search based on this mere observation must besuppressed (People v Richie, 77 AD2d 667, 668 [1980]). This is so even when an officertestifies at the suppression hearing that he or she recognized a metal silver pipe as one commonlyused to smoke, and thus contain, marijuana (id.). There is nothing to distinguish thematter sub judice from the facts in Richie. Additional factors beyond mere possession ofthe pipe must be present (see People v Alexander, 218 AD2d 284 [1996]).
The record is devoid of any indicia of possession of an illicit substance by the defendant."The existence of probable cause in a narcotics possession arrest cannot be made to turn on anobservation of the passing of [material] or money since none of the possession crimes requiressuch conduct as an element of the offense" (People v Eldridge, 103 AD2d 470, 474[1984]). There is nothing in the record to indicate that Vazquez initially observed either a drugtransaction, namely the exchange of money or drugs, drug possession, namely any residue or anysubstance in the pipe, the passing of the pipe to or from the defendant, the pipe being smoked byor being placed to the mouth of the defendant, or the defendant's engagement in any furtiveactivity. Vazquez simply characterized the object as a crack pipe, without providing adescription of what he observed prior to the search. Vazquez at one point cites the object as avial and at other times a pipe. He purportedly observed, at night, from across the street, andwhile in a moving patrol car, a portion of a three-to-four-inch pipe protruding from thedefendant's hand (see People v Garafolo, 44 AD2d 86 [1974]; People v Rutledge, 21 AD3d1125 [2005]; People v Heath, 214 AD2d 519 [1995]). The issue of credibility ispreserved here because the hearing court "expressly decided" that Vazquez was credible (seePeople v Edwards, 95 NY2d 486, 491 n 2 [2000]). The record is silent as to whether theplace of the search was a drug-prone location, or whether Vazquez had experience or expertise inidentifying illicit substances, drug transactions, or "crack pipes." Additionally, Vazquez couldnot determine whether there was any substance in the pipe, much less whether the pipe containedcontraband. Only on cross-examination did Vazquez testify that, seven months prior to theincident underlying the instant [*7]case, he had arrested thedefendant for possession of cocaine residue. Nonetheless, Vasquez testified that, at the time ofthe subject arrest, he did not recognize the defendant, that he did not remember arresting thedefendant previously, and that he did not remember the location of that first arrest. Oncross-examination, Vazquez was asked: "And you already knew who he was from the previousarrest?" to which he responded: "No, I did not know at the time." Thus, the fact of the prior arrestand the facts underlying it were not included in Vazquez's calculus in finding the existence ofprobable cause. Since the legality of an arrest must be determined upon the actual facts andcircumstances known to the officer at the time of the arrest (see People v Cooper, 38 AD3d 678 [2007]), the majority cannotthen rely on Vazquez's testimony in this regard to support a finding of probable cause.
Nor does this testimony demonstrate that Vazquez possessed the knowledge that the pipe inquestion is commonly used for smoking crack cocaine and, therefore, that there was probablecause to believe that there was cocaine residue in the pipe. The record does not indicate thatVazquez had earlier arrested the defendant with a crack pipe. Again, on cross-examination,Vazquez testified that he arrested the defendant for the exact same thing, namely for thepossession of cocaine residue. Residue is defined as "something remaining after a part is taken,separated, removed or designated; remainder; rest" (Webster's Third New InternationalDictionary [2002]). There is no mention in Vazquez's testimony that a pipe was involved. Thedocument used to refresh Vazquez's recollection was not received into evidence. Should oneprior arrest seven months earlier, that was not remembered at the time of the subject incident,together with Vazquez's conclusion that he knows what a crack pipe is, be sufficient to conferknowledge upon the officer that the subject pipe is commonly used to smoke crack or cocaine,warranting a full-blown search, when a person places such a pipe in one's pocket? I respectfullyanswer this question in the negative.
The People have the initial burden of going forward with evidence of the legality of policeconduct (see People v Berrios, 28 NY2d 361, 367 [1971]). The People did not meet theirburden in this regard. The majority concludes not only that the People met their burden in thisregard by the testimony elicited from Vazquez by the defense on cross-examination, but that thedefendant has not met his burden of proving the illegality of the police conduct (see People vDi Stefano, 38 NY2d 640 [1976]). I respectfully disagree. This Court is asked to make toomany inferences to sustain the police conduct. We are asked to infer that the first arrest alsoinvolved a crack pipe, even though the testimony only indicates that the defendant was arrestedfor the possession of cocaine residue seven months earlier. Cocaine residue often has been foundin and on objects other than pipes, e.g., dollar bills (see People v Martinez, 83 NY2d 26[1993]), front driver's side and rear passenger seat areas of cars (see People v Jones, 39 AD3d1169 [2007]), plastic bags (see People v Myers, 303 AD2d 139 [2003]), a dish(see People v Hawkins, 300 AD2d 1101 [2002]), a razor (see People v James,266 AD2d 236 [1999]), and a plastic straw (see People v Espinal, 209 AD2d 538[1994]). The majority's conclusion that the prior arrest of this defendant involved a similar pipeis not supported by the record. We are then asked to assume that, if a pipe were involved, thenVazquez possessed the necessary experience from this one arrest, even though not rememberedat the time, to know that the subject pipe is the kind commonly used to smoke crack cocaine. Inmy opinion, the record does not support making such inferences. "The line between permissibleinference and impermissible speculation is not always easy to discern" (Goldhirsh Group,Inc. v Alpert, 107 F3d 105, 108 [1997]). Based on the evidence presented at the suppressionhearing, the majority's finding that Vazquez had probable cause to search the defendant isunsupported by the record. The testimony that Vazquez recognized the object to be, as themajority characterized it, "[t]he type of pipe commonly used for smoking crack cocaine," is nodifferent [*8]from an officer finding probable cause to arrest andsearch a person upon the mere observation of a glassine envelope or a metal pipe (see Peoplev Oden, 36 NY2d at 385; People v Corrado, 22 NY2d at 313; People v Richie,77 AD2d at 668).
Since the search was not based on probable cause, the hearing court improperly denied thosebranches of the defendant's omnibus motion which were to suppress the physical evidence andidentification testimony. The evidence seized and the identification of the defendant were thefruit of the illegal search and should be suppressed (see Wong Sun v United States, 371US 471, 488 [1963]), and the matter should be remitted for an independent source hearing (see People v Wilson, 5 NY3d 778[2005]).