| People v Newson |
| 2017 NY Slip Op 07752 [155 AD3d 768] |
| November 8, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Takim Newson, Appellant. |
Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph Ferdenzi, and Heather H. Marshall of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.),rendered September 26, 2013, convicting him of robbery in the first degree (two counts), robberyin the second degree (three counts), criminal possession of a weapon in the second degree (twocounts), criminal possession of a weapon in the third degree, criminal possession of stolenproperty in the fifth degree, failing to stop at a steady red signal, and making an unlawful turn,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Paynter, J.), of those branches of the defendant's omnibus motion which were tosuppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is modified, on the law and the facts, by vacating the convictionsof robbery in the first degree (two counts), robbery in the second degree (three counts), criminalpossession of a weapon in the second degree (two counts), criminal possession of a weapon inthe third degree, and criminal possession of stolen property in the fifth degree, vacating thesentences imposed thereon, and dismissing those counts of the indictment; as so modified, thejudgment is affirmed, and those branches of the defendant's omnibus motion which were tosuppress physical evidence and his statements to law enforcement officials are granted.
At a suppression hearing, the People elicited testimony from the arresting officer, thedetective who interviewed the defendant at the police station, and the officer who assisted thearresting officer in conducting an inventory search of the defendant's vehicle.
The arresting officer testified that at approximately 3:30 a.m. on the night at issue, a redMitsubishi traveling at a high rate of speed cut off the unmarked police vehicle that he had beendriving, made a left turn from the far right lane of traffic, and then made another left turn througha red light. The officer testified that, as a result, he directed the vehicle, which was driven by thedefendant, to stop. The officer also testified that, at the time he stopped the vehicle, he had nosuspicion that the vehicle or its occupants were connected in any way to a radio run he hadreceived approximately 20 minutes earlier describing a black man wearing a "blue shirt and bluepants" and carrying a firearm in his waistband who had fled on foot from the area of "70-20Grand Avenue."
[*2] The arresting officer furthertestified that after the vehicle stopped, he approached the driver's side, where the defendant wassitting in the driver's seat, and his partner approached the passenger's side, where a malepassenger was sitting in the front seat. The officer testified that he observed a Coach handbag inthe back seat of the vehicle, but he also testified that, at that point, he had no knowledge that thehandbag may have been the subject matter of a potential robbery.
The arresting officer testified that as he approached the vehicle, he thought the front seatpassenger could "possibly fit[ ]" the description from the radio run because he was a black malewearing all dark clothing. The officer admitted that the passenger had been wearing grey jeansand a black jacket, not blue pants or a blue shirt, but indicated that in his experience, witnesseseasily confuse blue and black.
The officer did not immediately ask the passenger to get out of the vehicle; instead, he askedthe defendant, who was still seated in the vehicle, if there was "anything illegal" on him or in thevehicle. According to the officer, the defendant replied, "No, officer. You can check." The officerdid not testify that at that time of his inquiry he was in fear for his safety. Although the officertestified that at the time the defendant responded to his inquiry, the officer smelled a strong odorof alcohol coming from the defendant, his question about "anything illegal" was not based on thesmell of alcohol or his belief that the passenger looked like the reported gunman, and he neverperformed a breathalyzer or other sobriety test on the defendant. The officer also testified thatneither he nor his partner drew a gun even though he thought the passenger might have matchedthe description of a man in dark clothing with a gun.
The officer testified that he directed the defendant to step out of the vehicle and move to therear of the vehicle, where he frisked the defendant but did not recover a weapon. The officer andhis partner then switched places, and the officer removed the passenger from the vehicle andmoved the passenger to the rear of the vehicle. The officer frisked the passenger but did notrecover a weapon.
The officer testified that he asked the defendant where he was coming from, and thedefendant answered that he was coming from a strip club and admitted that he had been drinking.The officer testified that this discussion occurred after the defendant had been removed from thevehicle and after the officer had asked the defendant if there was anything illegal on him or in thevehicle. According to the officer, at the time he entered and looked inside the vehicle, thedefendant and the passenger were standing at the rear of the vehicle, and he knew that they wereunarmed. The defendant and the passenger were not free to go at that point.
The officer testified that although he had no knowledge that the Coach handbag may havebeen involved in a robbery, the handbag "grabbed [his] attention," and he had a hunch orsuspicion that there might be something wrong with two men driving with a handbag in thebackseat. Next to the handbag, he saw a camera and a cell phone. The officer looked inside thehandbag to see if there were any markings that would identify the owner and then turned on thecamera and saw that all the photographs were of Asian people. The officer testified that he askedthe defendant who the camera belonged to, and the defendant replied that it belonged to hisgirlfriend, who he described, upon further questioning, as "Dominican." The officer furthertestified that when he asked the defendant why all the photographs in the camera were of Asianpeople, the defendant explained that "he [had] bought it off of a crack head in theRockaways."
According to the officer, he then retrieved the cell phone and dialed the most recent numberon the phone. The officer testified that a young woman answered and informed him that thehandbag, camera, and cell phone belonged to an Asian exchange student then living in Flushing.The woman reported that she had seen the owner of the property earlier in the evening and thatshe could not explain how the items came into the defendant's possession. The officer arrestedthe defendant and the passenger and called for another police vehicle.
According to the arresting officer, when the next police vehicle arrived, the officers used itscomputer data system to search then-recent police reports, one of which showed that a Coach[*3]handbag, a cell phone, and a camera matching the descriptionof the items in the defendant's vehicle had been stolen earlier that evening. The officer testifiedthat at that point he knew a crime had been committed, and the officers then transported thedefendant, the passenger, and the Mitsubishi back to the police station.
The arresting officer and an officer who assisted him with an inventory search of the vehicleboth testified about the inventory search, and about the handgun that the assisting officer foundbehind the radio face bracket that held the center console radio, which seemed to be"unclicked."
The detective who interviewed the defendant testified that the defendant initially declined tospeak with him when he encountered the defendant at around 5:30 a.m. at the police station. Thedetective did not advise the defendant of his Miranda rights (see Miranda vArizona, 384 US 436 [1966]) at this first meeting, and he and his partner returned thedefendant to a holding cell after the defendant declined to speak with them. The detective furthertestified that he had no further contact with the defendant until approximately seven hours later.At that time, the detective again was in the interview room with the defendant and asked him ifhe would like to speak about the incident. When the defendant asserted that he would, thedetective advised the defendant of his Miranda rights by reading a preprinted card to thedefendant. The defendant signed a written waiver of his Miranda rights.
The defendant spoke to the detective approximately nine hours after he was arrested andmade several inculpatory statements regarding where he got the gun, how close he had been tothe person he robbed, and what he was planning to do with the camera. The interview lastedapproximately one hour but was not videotaped, and the defendant did not sign a statement.Thereafter, the defendant was charged in a 13-count indictment with, inter alia, robbery in thefirst degree (two counts), robbery in the second degree (three counts), criminal possession of aweapon in the second degree (two counts), criminal possession of a weapon in the third degree,criminal possession of stolen property in the fifth degree, failing to stop at a steady red signal,and making an unlawful turn.
The suppression court denied those branches of the defendant's omnibus motion which wereto suppress the physical evidence found in the backseat of the Mitsubishi, the gun, and thedefendant's statements to the police. The court, crediting the testimony of the arresting officerand the other prosecution witnesses, concluded that the initial traffic stop was justified and thatthe defendant consented to the search of the vehicle. The court also determined that the inventorysearch was valid and that, in any event, the police were authorized to search the entire vehicle.Finally, the court concluded that the defendant's statements at the police station were admissiblebecause they were made after a voluntary waiver of his Miranda rights.
After a jury trial, the defendant was convicted of all counts submitted to the jury. Thedefendant appeals.
Contrary to the People's contentions, the defendant properly preserved the issues raisedherein for appellate review (see CPL 470.05 [2]).
"At a suppression hearing, the prosecution has the initial burden of going forward withevidence to demonstrate the legality of the police conduct in the first instance" (People v Moses, 32 AD3d 866,868 [2006]). Accepting the testimony of the arresting officer as true (see People v Condon, 100 AD3d920, 920 [2012]), we nevertheless find that the branch of the defendant's omnibus motionwhich was to suppress the physical evidence should have been granted. The evidence establishedthat the officer did not have a "founded suspicion that criminality [was] afoot" that would justifyhis question as to whether the defendant had anything illegal in the vehicle (People v Garcia, 20 NY3d 317,324 [2012]; see People v De Bour, 40 NY2d 210, 215 [1976]). Although the stop wasjustified by the traffic violations, the intrusiveness of the officer's conduct exceeded that which ispermissible during a normal traffic stop (see People v Woods, 189 AD2d 838, 842[1993]; People v Mikel, 152 AD2d 603, 605 [1989]). The officer did not testify to anysuspicious actions by the defendant, nor did he testify that he felt threatened [*4]in any way or offer any other justification for asking the defendantif there was anything illegal in the vehicle or for frisking the defendant (see People vWoods, 189 AD2d at 842; People v Mikel, 152 AD2d at 605).
Any subsequently acquired suspicion that the officer formed when he searched the Coachhandbag, the cell phone, and the camera did not justify the officer's question that preceded thesearch as to whether there was anything illegal in the vehicle (see People v Milaski, 62NY2d 147, 155-156 [1984]; People v De Bour, 40 NY2d at 215-216). "[A] request forinformation involves basic, nonthreatening questions regarding, for instance, identity, address ordestination. . . . Once [an] officer asks more pointed questions . . . theofficer is no longer merely seeking information . . . [and the inquiry] must besupported by a founded suspicion that criminality is afoot" (People v Hollman, 79 NY2d181, 185 [1992]). Here, the officer's testimony demonstrated that his question to the defendant asto whether there was anything illegal in the vehicle was based on his observations of the trafficviolations and on his speculation that the passenger, not the defendant, possibly matched thedescription of the man in the radio run. Those facts are insufficient to constitute foundedsuspicion that criminality was afoot (see People v Garcia, 20 NY3d at 324; People vDe Bour, 40 NY2d at 225-226; People v Turriago, 219 AD2d 383, 387-388 [1996],mod 90 NY2d 77 [1997]; People v Woods, 189 AD2d at 842). As the officer'squestion was not supported by the requisite founded suspicion that criminality was afoot, the fruitof that unlawful inquiry must be suppressed (see People v Milaski, 62 NY2d at 155-156;People v De Bour, 40 NY2d at 217).
Thus, the Coach handbag, the cell phone, and the camera should have been suppressed asfruit of an illegal search, as well as the gun that was subsequently found upon an inventory of thevehicle (see People v Garcia, 20 NY3d at 324; People v Rossi, 80 NY2d 952, 954[1992]; People v Smith, 98 AD3d590, 592-593 [2012]; People v Woods, 189 AD2d at 842; see also People vTurriago, 219 AD2d at 391).
Contrary to the People's contention, the suppression record did not demonstrate that thecausal connection between the illegal search and the defendant's statements was sufficientlyattenuated to purge the taint of the illegal search (see People v Harris, 77 NY2d 434, 441[1991]; People v Woods, 189 AD2d at 842; see also People v Bradford, 15 NY3d 329, 333 [2010]; People vConyers, 68 NY2d 982, 983 [1986]; People v Rogers, 52 NY2d 527 [1981]).Accordingly, the physical evidence, as well as the statements that the defendant made to lawenforcement officials, must be suppressed (see Taylor v Alabama, 457 US 687, 694[1982]; Wong Sun v United States, 371 US 471, 485 [1963]; People v Harris, 77NY2d at 441).
Without the statements and physical evidence that should have been suppressed, there couldnot be sufficient evidence to prove the defendant's guilt of the robbery or the related charges.Thus, all counts of the indictment other than those for traffic violations must be dismissed(see People v Rossi, 80 NY2d at 954; People v Smith, 98 AD3d at 592-593;People v Woods, 189 AD2d at 842; see also Wong Sun v United States, 371 USat 485).
In light of our determination, we need not reach the defendant's remaining contention. Hall,J.P., Sgroi and Duffy, JJ., concur.
Maltese, J., dissents, and votes to affirm the judgment, with the following memorandum:Contrary to the view of my colleagues in the majority, I agree with the suppression court that thearresting officer's efficient and reasonable inquiry at the scene was justified under the totality ofthe circumstances and that the police conduct in this case was lawful.
I do not explicitly disagree with my colleagues' recitation of the arresting officer's testimonyat the suppression hearing. However, I do believe that this evidence, when viewed as a whole andin light of the reasonable inferences that may be drawn therefrom, paints a picture that isdifferent from the one presented by my colleagues. I believe, as did the suppression court, thatthe [*5]evidence sets a scene wherein the arresting officer wasreasonably suspicious of some manner of criminal activity afoot (see People v De Bour,40 NY2d 210 [1976]) and the defendant volunteered his consent to "check" his car forcontraband.
At 3:10 a.m. on a Saturday morning, the arresting officer was in uniform and on patrol dutyin an unmarked police vehicle when he received a radio run describing an armed man fleeing thefront of a deli in Queens. The officer and his partner drove to the specified location andcanvassed the area, but they did not locate the suspect described in the radio run. Twenty minuteslater, at approximately 3:30 a.m., the defendant drove a red Mitsubishi at a high rate of speed andcut off the unmarked police vehicle. The defendant made a left turn from the far right lane oftraffic, and then made another left turn through a red light. Due to these traffic infractions, theofficer turned on his emergency lights, and the defendant slammed on the brakes and came to asudden stop in the middle of the road. Using his loudspeaker, the officer directed the defendantdriver to pull over.
The officer then approached the driver's side of the vehicle, and his partner approached thepassenger side, where a passenger was sitting in the front passenger seat. Neither officer removedtheir weapons from their holsters. While the officer was approaching the vehicle, he observed aCoach brand woman's handbag in the backseat. At first, as aptly noted by the majority, hethought that the front-seat passenger "possibly fit[ ]" the description from the radio run (both thedefendant and the passenger were young black males). The officer smelled a strong odor ofalcohol coming from the defendant. When the officer asked the defendant if there was anythingillegal on him or in the vehicle, the defendant immediately replied, "No, officer. You can check."The officer directed the defendant and his passenger to step out of the vehicle. Both men werefrisked and no weapons were found. When the officer asked the defendant where he was comingfrom, the defendant said that he was coming from a strip club, and he confirmed that he had beendrinking alcohol.
While the defendant and the passenger were standing outside the car, the officer looked intothe backseat. There were several items in the backseat, including the Coach handbag. The officerstated that the handbag "grabbed [his] attention" because something seemed strange about twomen driving a vehicle with a handbag in the backseat. Next to the handbag, the officer saw acamera and a white cell phone. Acting upon the defendant's unsolicited consent to "check" thevehicle for illegal items, the officer looked inside the handbag to see if any markings identifiedits owner. The officer also turned on the camera and saw that all the photographs were of peoplewho appeared to be Asian. When the officer asked "who the camera belonged to," the defendantstated that it belonged to his girlfriend, who he described as "Dominican," and said that he"bought [the camera] off of a crack head in the Rockaways." Then, the officer picked up the cellphone and dialed the most recent number. A young woman answered and informed the officerthat the handbag, camera, and cell phone belonged to an Asian exchange student who lived inFlushing. The woman on the phone had seen the owner of the property earlier that evening, andshe could not explain why the items were in the defendant's possession. At this point, the officerarrested the defendant and the passenger and called for another police vehicle.
When the next police vehicle arrived, the officers used its computer to search recent policereports. A robbery complaint report showed that a matching Coach handbag, cell phone, andcamera had been taken during a robbery earlier that evening. Thereafter, the officers transportedthe defendant, the passenger, and the vehicle back to the police station.
During an inventory search of the vehicle, conducted pursuant to procedures set forth in theNew York City Patrol Guide, a police officer visually inspected the center console radio andnoticed that the radio face bracket appeared to be "unclicked" or "unsnapped." Further inspectionled to the discovery of a handgun behind the face bracket.
At the police station, the defendant signed a written waiver of his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]) and made several inculpatory statements.Among other things, he explained how he obtained the handgun, his proximity to the robberyvictim, and his plan to sell the camera. The interview lasted approximately onehour.
[*6] The defendant did not present any evidenceat the suppression hearing.
After the hearing, the suppression court, crediting the People's witnesses, concluded that thetraffic stop was justified, the defendant voluntarily consented to a search of the vehicle, thesubsequent inventory search was valid, and the defendant's statements at the police station werevoluntarily made after he waived his Miranda rights. I agree.
On these facts, the prosecution met its initial burden of going forward with evidencedemonstrating the "legality of the police conduct in the first instance" (People v Moses, 32 AD3d 866,868 [2006]).
In New York, the propriety of an encounter between a police officer and a person is generallymeasured by the graduated four-level test set forth in People v De Bour (40 NY2d 210[1976]; see People v Garcia, 20NY3d 317 [2012]). The relevant inquiry is whether the encounter was justified at itsinception and whether the police action was "reasonably related in scope to the circumstanceswhich rendered its initiation permissible" (People v De Bour, 40 NY2d at 222; see People v Moore, 6 NY3d 496,498 [2006]).
Here, we all agree that there was a valid vehicle stop, justified by the arresting officer'sobservation of multiple traffic offenses. In my view, the timing and nature of the several trafficoffenses did more than justify the stop. These high-speed traffic violations, committed withabandon in the wee hours of the morning on a Saturday, would provide a reasonable officer withgrounds not only to make a traffic stop, but also to develop reasonable suspicion that somethingmore sinister may be afoot (cf. People vGraves, 142 AD3d 559, 560 [2016]; People v Jackson, 158 AD2d 545, 545[1990]). Although the arresting officer may have better articulated his thought process as to whyhe proceeded the way he did, the suppression court considered all the evidence adduced by thePeople and made logical inferences in reaching a determination as to whether the police conductwas lawful. In addition to the time of night and the defendant's high rate of speed and erraticdriving, the officer testified that the passenger might have fit a description of a gun-toting suspectfrom a recent radio run. More importantly, the officer's suspicion was further aroused when hesaw a Coach handbag in plain view before he reached the driver's side window. He thought itunusual that two men out for a late night, high-speed ride had a handbag in the backseat. Underthese circumstances, the suppression court properly concluded that the traffic stop was valid andthat the arresting officer's conduct, including ascertaining where the driver and occupant werecoming from—a strip club where they acknowledged that they were drinking—andasking whether the defendant had anything illegal in the vehicle, was a justified level-two inquiry(see People v De Bour, 40 NY2d at 215-222; People v Graves, 142 AD3d at 560;People v Brito, 244 AD2d 631 [1997]; cf. People v Garcia, 20 NY3d at 324;People v Battaglia, 86 NY2d 755, 756 [1995]; People v Stevenson, 7 AD3d 820, 821 [2004]; People vWilliams, 300 AD2d 684, 685 [2002]).
Further, the suppression court properly concluded that the defendant volunteered his consentto search the vehicle. "Consent to search, a relinquishment of constitutional protection under boththe Federal and State Constitutions against unjustified official intrusion, must be a free andunconstrained choice. Official coercion, even if deviously subtle, nullifies apparent consent.Whether consent has been voluntarily given or is only a yielding to overbearing official pressuremust be determined from the circumstances" (People v Gonzalez, 39 NY2d 122, 124[1976]; see People v Turriago, 219 AD2d 383, 389 [1996], mod 90 NY2d 77[1997]). The People have a heavy burden of proving the voluntariness of a defendant's consent toa search, "which is a question of fact that must be determined from the totality of thecircumstances" (People v Quagliata,53 AD3d 670, 671 [2008]; seePeople v Concepcion, 69 AD3d 956, 956 [2010], mod 17 NY3d 192 [2011]).Here, considering the totality of the circumstances, the People met their burden of demonstratingthat the defendant's consent was voluntarily given and was not the product of coercion (see generally People v Xochimitl, 147AD3d 793, 794 [2017]).
Significantly, the arresting officer never asked the defendant for his consent to search thevehicle (cf. People v Irizarry, 79 NY2d 890, 892 [1992]; Matter of Antoine W.,79 NY2d 888, 890 [1992]). Instead, the defendant immediately responded to the officer'squestion about whether he had [*7]anything illegal on his personor in the vehicle, "No, officer. You can check." Moreover, there was little or no indicia ofcoercion prior to the defendant volunteering his consent to "check" the vehicle (cf. People vGonzalez, 39 NY2d 122 [1976]). The record demonstrates that the arresting officer and hispartner never laid hands upon their firearms, let alone removed them from their holsters (cf.People v Quagliata, 53 AD3d at 672). Instead, the officer asked a simple question, whichpromptly yielded the defendant's voluntary consent to go ahead and "check" the vehicle. Therewas not a prolonged period of questioning or detainment, and there was no indicia of harassment(see People v Leiva, 33 AD3d1021, 1023 [2006]; cf. People v Woods, 189 AD2d 838, 839-843 [1993]; Peoplev Mikel, 152 AD2d 603, 605 [1989]).
Accordingly, because the police conduct was lawful and the proceeds of the robbery wereobtained after the defendant volunteered his consent to search the vehicle, the suppression courtproperly denied those branches of his omnibus motion which were to suppress the handbag, thecell phone, and the camera (see People vAbraham, 111 AD3d 756, 757 [2013]; cf. People v Turriago, 219 AD2d at387).
Further, the suppression court properly declined to suppress the handgun discovered duringthe inventory search of the defendant's vehicle. Inventory searches of an automobile after thelawful arrest of the driver are permissible as an exception to the warrant requirement (see People v Padilla, 21 NY3d268, 272 [2013]; People vMorman, 145 AD3d 1435, 1436 [2016]). Here, the evidence at the suppression hearingdemonstrated that the inventory search was valid because it was conducted pursuant toestablished police procedures and the items removed from the vehicle were each assigned avoucher number (see People vTaylor, 92 AD3d 961, 962 [2012]; cf. People v Gomez, 13 NY3d 6, 11 [2009]), which created a"usable inventory" of the vehicle's contents (People v Ewart, 130 AD3d 1062, 1062 [2015] [internal quotationmarks omitted]; see People vCochran, 22 AD3d 677, 677-678 [2005]).
At trial, the robbery victims identified the Coach handbag, the camera, and the cell phone asthe items forcibly taken from them.
In sum, it is my view that, under the totality of the circumstances in this case, the policeofficers used their training and experience to ask simple and reasonable questions, when theypossessed reasonable suspicion that criminality may be afoot, to resolve the situation peacefullyrather than drawing their guns or otherwise threatening or using unnecessary force.Consequently, the suppression court properly denied suppression of the Coach handbag, the cellphone, the camera, the gun, and the defendant's statements to police.
Accordingly, I would affirm the judgment of conviction.