| People v Mabeus |
| 2009 NY Slip Op 10003 [68 AD3d 1557] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidMabeus, Appellant. |
—[*1]
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Eidens,J.), rendered August 9, 2004, convicting defendant upon his plea of guilty of the crime ofrobbery in the first degree.
The relevant facts are more fully set forth in our prior decisions in this matter (63 AD3d1447 [2009]; 47 AD3d 1073 [2008]). Briefly, defendant was charged in an eight-countindictment with various theft-related crimes following the August 2003 armed robbery of aMcDonald's restaurant in Schenectady County. After County Court denied his request for aMapp/Dunaway hearing, defendant pleaded guilty to robbery in the first degree,without waiving his right to appeal, and was sentenced to 20 years in prison and five years ofpostrelease supervision. Upon defendant's initial appeal to this Court, we withheld decisionpending completion of a Mapp/Dunaway hearing to further develop the recordregarding, among other things, the circumstances surrounding the application for a searchwarrant authorizing the installation of a global positioning system (hereinafter GPS) trackingdevice on defendant's vehicle and that of his live-in girlfriend, the execution thereof and themanner in which the physical evidence sought to be suppressed was recovered (47 AD3d at1075). Based upon the evidence adduced at that hearing, we concluded that the search warrantauthorizing the placement of the GPS tracking device on defendant's vehicle was valid (63 AD3dat 1452). However, as to the circumstances surrounding defendant's arrest, the manner in whichcertain physical evidence [*2]was seized and the admissibility ofdefendant's statements to law enforcement officials, we again concluded that the record had notbeen sufficiently developed, withheld decision and remitted the matter to County Court toconduct an appropriate hearing (63 AD3d at 1453). That hearing is now completed anddefendant's appeal is before us for disposition.
The crux of defendant's argument on appeal is that he was under arrest from the momentState Trooper Stephen Russom and his partner confronted him in his driveway with theirweapons drawn, that there was no probable cause to arrest him at that point in time and,therefore, any subsequent statements made by him or physical evidence seized constitute fruit ofthe poisonous tree and must be suppressed. For the reasons that follow, we cannot agree and,accordingly, affirm defendant's conviction.
On August 9, 2003, Gregory Restina, formerly a detective with the Town of Glenville PoliceDepartment in Schenectady County, received a report that a local McDonald's restaurant hadbeen robbed by a man brandishing what appeared to be a handgun and an axe. That informationwas distributed to other law enforcement agencies, including the State Police. Upon learning ofthe robbery, Russom, who was on patrol with his partner, contacted Brendan Moran, a seniorinvestigator with the State Police.[FN1]Moran instructed Russom to set up surveillance on defendant's residence and, if defendantappeared, to execute a "felony stop" utilizing extreme caution to ensure officer safety.[FN2]
Russom and his partner took up position nearby and, as defendant rolled through a stop signen route to his residence, Russom identified defendant, whom he described as a "very distinctivelooking individual," as the operator of the pickup truck in question—to which the GPStracking device previously (and validly) had been affixed. Russom and his partner pulled inbehind defendant in his driveway and, as defendant was exiting his truck, drew their weapons,[*3]ordered defendant from the vehicle and down to the ground,handcuffed defendant and placed him in the back of their marked police vehicle.[FN3]Numerous police officers responded to the scene, including Moran, who instructed anotherinvestigator to access the GPS tracking information. While waiting for this information, Moranobserved an axe and a bag of clothing—in plain view—in the bed of defendant'spickup truck.
The GPS tracking information revealed that defendant's pickup truck had been in the vicinityof the McDonald's restaurant at the time of the robbery in Schenectady County; the truck thenreturned to the Town of Clifton Park, Saratoga County and made a brief stop on Maxwell Road,where defendant apparently was employed, before proceeding to defendant's residence. Oncethis information was received, Moran testified, defendant was placed underarrest—roughly 35 minutes after he had been detained by Russom and hispartner—and transported to the State Police barracks in Clifton Park, where he receivedhis Miranda warnings.
In conjunction therewith, defendant's vehicle was towed to the State Police barracks, whereRestina photographed the axe and clothing visible in the bed of the pickup truck. Restina andothers then separately brought two McDonald's employees out to view the axe, each of whomidentified it—based upon a distinctive marking on the blade—as the axe they hadseen during the course of the robbery.[FN4]Restina applied for and obtained a search warrant authorizing a search of defendant's vehicle andplace of employment—the validity of which defendant does not challenge—and ablack knit ski mask, a black pellet .177 caliber handgun and a quantity of currency were amongthe items recovered.
Defendant does not dispute that Russom possessed a reasonable suspicion that a crime hadbeen committed and, therefore, was authorized to forcibly stop and detain him in the firstinstance (see e.g. People v Nesbitt, 56 AD3d 816, 818 [2008], lv denied 11NY3d 928 [2009]). The question before this Court is whether that investigatory stop ripened intoa full-blown arrest. Resolution of this inquiry, in turn, centers upon "whether a reasonableperson, innocent of any crime, would have believed he was arrested if he was in the defendant'sposition" (People v Robinson, 282 AD2d 75, 79 [2001], citing People v Hicks,68 NY2d 234, 240 [1986]). Contrary to defendant's assertion, the propriety of an investigatorystop does not hinge upon the precise words or actions employed. Neither the fact that thetroopers drew their weapons (see People v Chestnut, 51 NY2d 14, 21 [1980], certdenied 449 US 1018 [1980]) nor the fact that defendant was handcuffed (see People vAllen, 73 NY2d 378, 380 [1989]; People v Galloway, 40 AD3d 240, 240-241[2007], lv denied 9 NY3d 844 [2007])—nor even the combination of those events(see People v Williams, 305 AD2d 804, 806 [2003])—necessarily is dispositive ofwhether defendant's detention was elevated into an arrest. Indeed, "police officers [who] findthemselves in a rapidly developing and dangerous situation presenting an imminent threat totheir well-being . . . must be permitted to take reasonable measures to assure theirsafety and they should not be expected 'to await the glint of steel' before doing so" (People vAllen, 73 NY2d at 380, quoting People v Benjamin, 51 NY2d 267, 271 [1980];see People v Williams, 305 AD2d at 807). Rather, an investigatory stop may be upheld ifthe authorities knew that a crime actually had been committed, the total period of the detentionwas brief, "the police diligently pursued a minimally intrusive means of investigation likely toconfirm or dispel suspicion quickly, during which time it was necessary to detain the defendant"(People v Hicks, 68 NY2d at 242) and "there is no proof of significantly less intrusivemeans available to accomplish the same purpose" (id. at 243; see People vDibble, 43 AD3d 1363, 1364-1365 [2007], lv denied 9 NY3d 1032 [2008]). In ourview, that standard was met here.
The testimony at the suppression hearing established that Russom knew that acrime—specifically, an armed robbery—had occurred. Russom also knew thatdefendant had a prior history of and currently was under investigation for committing similarcrimes and that the suspect in this particular robbery displayed what appeared to be a handgun.Defendant was detained in his driveway for approximately 15 to 20 minutes before Moranarrived and observed the axe in the bed of the pickup truck, and an additional 10 to 15 minuteselapsed before Moran obtained the information from the GPS tracking device placing defendantin the vicinity of the robbery, resulting in a total detention of 30 to 35 minutes.[FN5]The record further reflects that Moran diligently pursued the retrieval of the GPS trackinginformation which, in turn, quickly confirmed the troopers' initial suspicions. Finally, there isnothing in the record to suggest that the troopers could have both responded to the developingsituation and safely ascertained whether defendant was involved in the crime under investigationwithout detaining defendant in the fashion that they did, particularly considering that they hadknowledge of defendant's violent criminal history, his previous escapes from custody and hisprior stated intention to use a firearm against police officers.
Given the facts of this case, we cannot say that the mere pat-frisk of defendant undertaken atthe scene was sufficient to dispel the troopers' concerns for their safety and/or neutralize the veryreal threat that defendant posed to them. Notably, neither Russom nor his partner searcheddefendant's vehicle at the scene and, therefore, could neither rule out the presence of a weapontherein nor, without handcuffing and physically restraining defendant, ensure that he did nothave access thereto. Simply put, the record reveals that the State Police "conducted a lawfulinvestigatory detention, fully supported by reasonable suspicion that defendant had beeninvolved in a violent crime, and this detention was not transformed into an arrest when the[troopers] ordered defendant out of his vehicle, placed him . . . in handcuffs, and[secured him] for approximately 30 minutes, since [each] of these . . . actions [was]justified by the particular exigencies involved in the investigation" (People v Medina, 37AD3d 240, 242 [2007], lv denied 9 NY3d 847 [2007]).[*4]
As defendant's arrest was supported by probable cause,his suppression motion was properly denied. In light of this conclusion, we need not addressdefendant's fruit of the poisonous tree claims. Accordingly, the judgment of conviction isaffirmed.
Cardona, P.J., Spain and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Moran was investigating aseries of robberies at McDonald's restaurants in Saratoga and Warren Counties and hadidentified defendant as a possible suspect in those robberies.
Footnote 2: Moran testified that defendanthad a history of engaging in armed robberies dating back to 1981 and that he twice escaped fromsecure detention facilities in Maryland. Moran further testified that when the State Policeapprehended defendant following a residential break-in in Saratoga County, defendant remarkedthat they "got him at a good time, while he was changing his clothes and wasn't able to get to thefirearm or he would have used it." Moran briefed the troopers assigned to the State Policebarracks in the Town of Clifton Park, Saratoga County regarding defendant and his criminalhistory. Russom, who was assigned to that barracks, similarly testified that he was aware ofdefendant's criminal history and subsequent escapes from custody, as well as the fact thatdefendant was on parole at the time the instant offense occurred. Russom also was aware that therobbery suspect was armed with a handgun, but apparently either did not hear or did not makenote of the fact that an axe was displayed as well.
Footnote 3: The door to the vehicle initiallyremained opened but was closed at some later point.
Footnote 4: Restina testified that after theaxe had been viewed, identified and photographed, defendant was interviewed, during the courseof which he stated that he had done nothing wrong, denied being in Glenville on the night of therobbery and indicated that his truck had been in his possession the entire evening. Defendantthen asked to speak with an attorney, at which point all questioning ceased. County Court foundthese statements to be voluntary, and that determination has not been challenged on appeal.
Footnote 5: Although Moran testified thatdefendant was not placed under arrest until the information from the GPS device was received,which plainly provided probable cause for defendant's arrest, Moran, unlike Russom, was awarethat an axe also had been displayed during the course of the robbery.