| People v Omowale |
| 2011 NY Slip Op 03348 [83 AD3d 614] |
| April 28, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Akinlowo Omowale, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 13,2008, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in thesecond degree and sentencing him as a second violent felony offender, to a term of seven yearswith five years' postrelease supervision, affirmed. Judgment, Supreme Court, New York County(Edward J. McLaughlin, J., at hearing; Bonnie G. Wittner, J., at plea and sentencing), renderedMay 13, 2008, convicting defendant of criminal possession of a controlled substance in the firstdegree and criminal possession of a weapon in the second degree and sentencing him, as asecond felony drug offender whose prior felony drug conviction was a violent felony, toconcurrent terms of 15 years and seven years, respectively, with five years' postreleasesupervision, reversed, on the law, the motion to suppress physical evidence granted, and theindictment dismissed.
Defendant appeals from Supreme Court's denial of two motions to suppress physicalevidence seized in the course of automobile stops that occurred on September 17, 2006 and May5, 2007.
At the time of the 2006 encounter, New York City Police Sergeant Siani and Officers Lugoand Thorn were riding in an unmarked patrol car wearing civilian clothes. At West 135th Street,the patrol car was stopped at a red light in the right lane and slightly behind a Cadillac Escaladebeing operated by defendant and stopped in the left lane. The Escalade's front-seat passenger,later identified as Devon Greene, looked toward the officers making eye contact with Siani in away that gave Siani the impression that Greene recognized him and his colleagues to be policeofficers. Greene then turned his shoulder as if placing something in the Escalade's center console.When the light turned green, defendant made a right turn from the left lane, cutting in front of thepatrol car without signaling. The officers activated the patrol car's emergency lights and siren butthe Escalade did not immediately stop moving. Using the patrol car's loudspeaker, Siani directeddefendant to pull the Escalade over several times. Defendant finally did so between West 133rdand 134th Streets.
As the officers approached the Escalade on foot, Thorn, who was on the passenger's side,[*2]saw Greene leaning over the Escalade's center console. Sianihad Greene step out of the Escalade, frisked him and found no weapon. Siani was neverthelessconcerned that a weapon or weapons might be in the car because it appeared to him that Greenehad put something in the center console. Accordingly, defendant, Greene and the three otheroccupants of the Escalade were directed to the back of the vehicle. Siani then went to the front tosee what, if anything, had been placed in the center console before allowing the occupants toreenter the Escalade. Siani opened the console and found a pistol inside of it. Defendant and theother vehicle occupants were then arrested. After driving the Escalade to the precinct, the policeofficers found two more guns, a box of ammunition and a quantity of cocaine in the console. Thepolice also recovered a bullet-resistant vest upon conducting an inventory search of the vehicle.
The second automobile stop occurred eight months later while defendant was out on bail onthe indictment stemming from the first incident. At the time of the 2007 encounter, Siani, Thornand two other officers stopped a Nissan Maxima moments after seeing defendant sitting in thevehicle while it was double-parked. As the officers approached, defendant asked Thorn if heremembered him. Thorn directed defendant to step out of the car and immediately handcuffedhim at Siani's direction. Once defendant was handcuffed, Siani recovered another person'sdriver's license which defendant was holding along with a stack of cards and his own driver'slicense. Siani asked defendant to explain his possession of the other person's license. In response,defendant stated that it belonged to a friend who had left it at his house. During this encounter,defendant never assumed anyone else's identity or offered the other person's driver's license as hisown. In fact, defendant was never even asked or directed to produce a driver's license at all.Nevertheless, Siani testified that defendant was arrested at the scene for "false impersonation"and taken to the precinct. Upon a post-arrest search of defendant's person, the police recoveredapproximately $3,000 and some cocaine. Siani then decided to search the Maxima for moredrugs. During that search of the car, the officers found a hidden compartment from which theyrecovered a pistol, $14,000 in currency and approximately a pound of cocaine.
In denying the first motion to suppress physical evidence, the court found that at the time ofthe 2006 arrest the officers were justified in removing defendant from the Escalade and searchingthe vehicle's center console because they were acting under a reasonable fear for their safety. Themotion court further concluded that the seizure of the additional contraband found in theEscalade after defendant's arrest was lawful. We agree. Defendant does not argue on this appealthat the Escalade was unlawfully stopped. He asserts that the search of the vehicle's centerconsole was unlawful.
In People v Carvey (89 NY2d 707 [1997]), the Court of Appeals reiterated itsholding in People v Torres (74 NY2d 224 [1989]) that "absent probable cause, it isunlawful for a police officer to invade the interior of a stopped car once the suspects have beenremoved and patted down without incident and any immediate threat to safety therebyeliminated" (People v Carvey at 710).[FN1]The Torres Court acknowledged an exception to the requirement of probable cause in[*3]that "[i]ndeed, there may well be circumstances where,following a lawful stop, facts revealed during a proper inquiry or other information gatheredduring the course of the encounter lead to the conclusion that a weapon located within the vehiclepresents an actual and specific danger to the officers' safety sufficient to justify a furtherintrusion, notwithstanding the suspect's inability to gain immediate access to that weapon"(People v Torres, 74 NY2d at 231 n 4). "Any inquiry into the propriety of police conductmust weigh the degree of intrusion it entails against the precipitating and attendingcircumstances" out of which the encounter arose (People v Salaman, 71 NY2d 869, 870[1988]; People v De Bour, 40 NY2d 210, 223 [1976]). The Court of Appeals applied theTorres exception to the requirement of probable cause in People v Mundo (99NY2d 55 [2002]) after considering the precipitating and attending circumstances of apolice-civilian encounter. Under the similar facts of Mundo, the police officers' attemptto stop the defendant's vehicle was thwarted when the defendant and his cohorts twice disobeyedthe officers' lawful commands and the defendant was seen trying to stash something within thevehicle (id. at 59).
The combination of factors in this case is analogous to those in Mundo because it ledto the justifiable conclusion that a weapon which could have been used to harm the officers wasin the Escalade. The first factor is the eye contact that gave Siani the impression that Greeneknew Siani and the other people in his vehicle were police officers.[FN2]The remaining relevant factors are (a) Greene's body movement that made it appear that he wasplacing something in the Escalade's center console while defendant was stopped at the red light,(b) the illegal right turn defendant made without signaling once Greene apparently perceived thatSiani and his companions were police officers, (c) defendant's failure to timely pull the Escaladeover after being directed to do so several times and (d) Greene's leaning over the Escalade'scenter console as the officers approached the vehicle on foot. Viewed in their totality, thesefactors gave rise to a sufficient predicate for Siani's very limited check of the Escalade's centerconsole once defendant and his passengers were removed from the car. In People v Fludd (20 AD3d 351[2005], lv denied 5 NY3d 852 [2005]), this Court similarly weighed the defendants'noncompliance with the police officers' directives together with an apparent effort to secretesomething in the back seat of a car in finding a sufficient predicate for a limited search of theback seat. We do not take issue with the dissent's view that there could have been innocentexplanations for defendant's delay in stopping his vehicle or Greene's movements therein. Wenote however that innocent explanations for behavior do not prevent police officers from acting[*4]on their well-founded suspicions (see People v Daye,194 AD2d 339, 340 [1993], lv denied 82 NY2d 716 [1993]). Because the search of theEscalade's console was lawful, there was probable cause for defendant's arrest and the contrabandrecovered during the ensuing inventory search was legally obtained.
Defendant's double-parking of the Maxima constituted a traffic infraction which gave theofficers a basis for approaching the vehicle and requesting information (see People vCitron, 255 AD2d 452 [1998], lv denied 92 NY2d 1030 [1998]). This aspect of theappeal however turns on the propriety of defendant's arrest after the officers approached him inthe street. In this regard, the motion court denied defendant's motion to suppress on the premisethat "[h]e was arrestable for criminal impersonation as soon as the—somebody saw thelicense that he was about to hand [sic]." This was error. Pursuant to CPL 140.10 (1) (a) apolice officer is authorized to arrest a person for any offense when he has "reasonable cause tobelieve that such person has committed such offense in his presence." As used in the statute,"reasonable cause" is equal to "probable cause" (People v Johnson, 66 NY2d 398, 402 n2 [1985]), i.e., "information which would lead a reasonable person who possesses the sameexpertise as the officer to conclude, under the circumstances, that a crime is being or wascommitted" (People v McRay, 51 NY2d 594, 602 [1980]).
A person commits criminal impersonation in the second degree when he or she"[i]mpersonates another and does an act in such assumed character with intent to obtain a benefitor to injure or defraud another" (Penal Law § 190.25 [1]). There was no probable cause fordefendant's arrest inasmuch as he did not offer the other person's driver's license as his own andhe did not impersonate anyone. In fact, as noted above, the police never even asked defendant toproduce a driver's license. The People's alternative argument that there was probable cause toarrest defendant for attempted criminal impersonation is not persuasive. An element of anattempt to commit a crime is "conduct which tends to effect the commission of such crime"(Penal Law § 110.00). Although it is likely that defendant considered passing the otherdriver's license off as his own, "[t]he law does not punish evil thoughts, nor does it generallyconsider mere preparation sufficiently dangerous to require legal intervention" (Donnino,Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 110.00, at 93[2009 ed]). Defendant's mere act of holding the driver's license in apparent preparation for acriminal impersonation does not constitute a punishable attempt (see People v Horner,300 AD2d 841, 845 [2002]). The People's argument that there was a basis to arrest defendant forcriminal possession of stolen property is equally unavailing. We so conclude because it does notappear from the record that the police learned that the driver's license had been reported lost untilafter defendant's arrest. We therefore find that defendant's arrest on the charge of criminalimpersonation was unlawful and all of the physical evidence seized as a result of that arrestshould be suppressed.
The People cite People v Allen (73 NY2d 378 [1989]) in support of their positionthat it was reasonable for the police to immediately handcuff defendant upon removing him fromthe Maxima. In Allen, the Court held that poor lighting conditions combined with a"reasonable belief that defendant might be armed, justified the limited use of handcuffs toprevent defendant from reaching for a concealed weapon" (id. at 380). This case isdistinguishable because the police had no reason to believe that defendant possessed a weapon atthe time of the 2007 encounter. To be sure, the People offered no evidence, for example, thatdefendant acted furtively, appeared to be reaching for a weapon or had any bulge under hisclothing characteristic [*5]of a weapon (see e.g. People v Mais, 71 AD3d1163, 1165 [2010], lv denied 15 NY3d 775 [2010]). Viewed in isolation, defendant'searlier arrest gave rise to a mere hunch, as opposed to a reasonable suspicion, that he was armedat the time of the 2007 encounter. We therefore find that the police officers' use of handcuffsconstituted an unlawful forcible seizure under the circumstances of this case.
We have considered and rejected defendant's remaining arguments, including his claim thatthe police were required to provide Miranda warnings before questioning him about thedriver's license (see Berkemer v McCarty, 468 US 420, 436-440 [1984]; People vBennett, 70 NY2d 891 [1987]; People v Huffman, 41 NY2d 29 [1976]).Concur—Tom, J.P., Friedman and DeGrasse, JJ.
Freedman and Manzanet-Daniels, JJ., dissent in part in a memorandum by Freedman, J., asfollows: I agree with the majority that defendant's motion to suppress physical evidence inconnection with his 2007 encounter with the police should have been granted, but I believe thatthe motion to suppress in connection with his 2006 encounter should have been granted as well.
With respect to the 2006 incident, I view the record, which the majority summarizesaccurately, as insufficient to support Supreme Court's finding that the police officers werejustified in searching the interior of defendant's Escalade after they had stopped the car for atraffic infraction, removed its occupants, frisked them, and isolated them at a distance from thevehicle. The rule in New York is that ordinarily, without probable cause, police officers cannotsearch the interior of a stopped car once they have removed its occupants and patted them downwithout incident (see People v Carvey, 89 NY2d 707, 710 [1997]). But as the majoritynotes, a narrow exception has been recognized where "following a lawful stop, facts revealedduring a proper inquiry or other information gathered during the course of the encounter lead tothe conclusion that a weapon located within the vehicle presents an actual and specific danger tothe officers' safety sufficient to justify a further intrusion, notwithstanding the suspect's inabilityto gain immediate access to that weapon." (People v Torres, 74 NY2d 224, 231 n 4[1989]). In order for there to be an "actual and specific danger," there must be a "substantial""likelihood of a weapon in the car" (Carvey, 89 NY2d at 711). A "theoretical" fear that asuspect may, following release, reenter the vehicle and gain access to a weapon inside it does notjustify a search (see Torres, 74 NY2d at 231 n 4 [emphasis omitted]).
On the facts of this case, I conclude that the officers did not have the requisite "knowledge ofsome fact or circumstance that supports a reasonable suspicion that [defendant was] armed orpose[d] a threat to safety" (People v Batista, 88 NY2d 650, 654 [1996]). In fact, SergeantSiani's testimony that the Escalade's passenger, Devon Greene, acted nervously because hesomehow knew that Siani and his companions were police officers, even though they weredriving an unmarked car and wearing plain clothes, seems entirely too speculative to be credited.Accordingly, the question whether the search was lawful is dependent on two circumstances:first, the Escalade's continued travel for a little more than one city block after the [*6]police had turned on their lights, siren, and loudspeaker; andsecond, Greene's upper-body movements, both before and after the Escalade stopped, which oneofficer, who could not see Greene's hands, stated that he thought meant that Greene wasmanipulating something in the center of the front seat.
I note that the Escalade's failure to stop immediately could be attributed to the driver'sinattentiveness, and that Greene's equivocal movements could be the result of any number ofactivities besides hiding a weapon. But based on these circumstances, I would have no difficultywith upholding a conclusion by the finder of fact that the police officers had reason to besuspicious of defendant and his companions. However, I cannot agree that these circumstancescould reasonably lead the police to suspect that the Escalade's occupants, once removed from thevehicle, were a threat to the officers' safety. I note that, in cases involving similar circumstances,a perceived lack of the reasonable suspicion of danger that is required under People v Torreshas occasioned vigorous dissenting opinions (see People v Allen, 42 AD3d 331, 332-335 [2007, McGuire, J.,dissenting], affd 9 NY3d 1013 [2008]; see also People v Mundo, 99 NY2d 55,59-63 [2002, Ciparick, J., and Kaye, Ch. J., dissenting]; People v Mundo, 286 AD2d 592,594-596 [2001, Rosenberger, J., dissenting]).
The cases that the majority cites are distinguishable. In People v Mundo (99 NY2d55 [2002], supra), the police observed a car make an illegal right turn at a red light andimmediately activated their lights. The defendant's car stopped, but when the officers approachedit on foot, it pulled away. The officers pursued the car and "[t]he stop and pursuit cycle repeateditself." During the third pursuit, the defendant's car nearly struck a pedestrian; the officers alsoobserved defendant, seated in the back seat, turn, face them, and "make a movement as if he werehiding something." The Court of Appeals concluded that defendant's "furtive movements," whencoupled with the car's "evasive actions," warranted a limited search of the vehicle (id. at57). In this case, the Escalade did not evade the police car or otherwise engage in reckless flightfrom police officers and did not demonstrate a disregard for others' safety. While thecircumstances in Mundo clearly demonstrated that the defendant sought both to evadeapprehension and to conceal something from the police, the same cannot be said here.
In People v Fludd (20 AD3d351 [2005], lv denied 5 NY3d 852 [2005]), a police car was cut off by thedefendants' Honda driving at "an excessive speed" (id. at 351). When the Honda stoppedafter the police car followed it for two blocks, the occupants twice directly disobeyed the officer'sorder to keep their hands placed where he could see them, and instead one of the defendantsfurtively slid a box under a pile of clothing in the back seat. The police officers recovered thebox, opened it, and found a loaded firearm. This Court found that the defendants' actions prior totheir removal from their car were "not benign" and "were such that the detectives perceived aheightened risk, and they reasonably feared for their safety" (id. at 353). Here, the actionsof the Escalade's occupants were nonthreatening and they cooperated with the police once theywere stopped.
For the reasons stated above, I would grant the motion to suppress in connection with the2006 incident, vacate defendant's relevant guilty plea, and dismiss the relevant charges.
Footnote 1: Citing NY Constitution, articleI, § 12, the Torres Court rendered its decision on state constitutional grounds anddeclined to adopt the federal standard by which an intrusion into the passenger compartment of asuspect's vehicle may be justified "solely on the theory that 'if the suspect is not placed underarrest, he will be permitted to reenter his automobile, and will then have access to any weaponsinside' " (People v Torres, 74 NY2d at 226, quoting Michigan v Long, 463 US1032, 1052 [1983]).
Footnote 2: Such eye contact may beweighed with other factors to determine whether there is a reasonably objective basis for policeofficers to fear for their safety (see e.g.People v Anderson, 17 AD3d 166 [2005]; People v Worthy, 261 AD2d 277[1999], lv denied 93 NY2d 1029 [1999]).