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The PEOPLE of the State of New York, Plaintiff, v. Santos VASQUEZ, Defendant.
The defendant is charged with one count each of Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law (PL) section 265.02(5)(ii), Criminal Possession of a Firearm, in violation of PL section 265.01-b(1), Criminal Possession of a Weapon in the Fourth Degree, in violation of PL section 265.01(1), Menacing in the Second Degree, in violation of PL section 120.14(1), and Operating a Motor Vehicle While Impaired, in violation of Vehicle and Traffic Law (VTL) section 1192(1). The defense moves to suppress a firearm, statements, officer observations and intoxilyzer test results as fruits of an unlawful seizure. The defendant also moves to preclude any statements made at the IDTU on the grounds that the People failed to give notice as required by Criminal Procedure Law (CPL) section 710.30(1)(a). This court conducted a combined Huntley/Dunaway/Mapp/Johnson hearing on September 12, 2018. Police Officers Alexander Mignone and Hector Justinico testified on behalf of the People. The defendant did not present any witnesses. On September 17, 2018, after the testimony was concluded, the court heard oral arguments from both sides.
I make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Officer Mignone has been with the New York City Police Department (NYPD) for five years (Hearing Transcript [Tr] at 8). Officer Mignone testified credibly that On February 14, 2017, Officer Mignone was working in uniform together a partner, Officer Hirsch (Tr at 11). At approximately 7:30 AM, Officer Mignone received a 911 call for a male Hispanic brandishing and waving around a firearm outside of 68 Garden Street in Kings County (Tr at 12). While proceeding to the location, Officer Mignone received additional radio calls providing a description of a vehicle, first as a red Ford, then a burgundy Mazda (Tr at 14). Additionally, the officers received a description of the individual that was alleged to have possessed the firearm as a male Hispanic wearing a light blue, black and white jacket with black and white Adidas sneakers and a black ski hat, as well as the vehicle's license plate number -- Pennsylvania license plate number JYH2070 (Tr at 15). Officer Mignone then received additional radio calls containing the direction of flight of the vehicle and finally observed a red Kia bearing the Pennsylvania license plate number stopped at the intersection of Troutman Street and Bushwick Avenue in Kings County (Tr at 15-17). Officer Mignone observed two individuals inside the vehicle, including a male in the driver's seat who matched the description that was previously provided (Tr at 17). The officers pulled up behind the vehicle and, with guns drawn, approached it (Tr at 17-18). Officer Mignone had the male, identified as the defendant herein, exit the vehicle and observed that he exhibited signs of intoxication: to wit; a strong smell of alcohol and bloodshot, red, watery eyes (Tr at 18). Officer Mignone asked the defendant to show his hands and to walk to the rear of the vehicle, at which point, the officers holstered their weapons (Tr at 19). As the defendant walked to the back of the vehicle, Officer Mignone observed that he was unsteady on his feet and very disheveled (Tr at 19). The officer also observed a bleeding laceration on the defendant's right hand (Tr at 19).
Officer Justinico and Sergeant Serrano then arrived on the scene (Tr at 20). Officer Mignone brought the defendant to Officer Justinico and began conducting a search “for any type of weapons or contraband” (Tr at 20-21). The officer had received information that the firearm was in the trunk of the vehicle (Tr at 21). Another officer on scene opened the trunk and stated there was a gun (Tr at 21). Officer Mignone then went to the trunk and observed a black firearm inside (Tr at 22). At that point, Officer Justinico told everyone not to touch the firearm and to close the trunk (Tr at 22). The defendant was then placed in handcuffs and transported to the 83rd precinct (Tr at 22).
Upon arrival at the 83rd precinct, the defendant was lodged in a cell (Tr at 23). After the defendant was processed, Officer Mignone, together with Officer Justinico, went to speak to the defendant (Tr at 23). At the time, the defendant was in a rear cell of the precinct uncuffed (Tr at 23). Officer Mignone gave the defendant his Miranda warnings by reading them from his memo book (Tr at 23). In response to each right, the defendant indicated that he understood each right and agreed to speak to the police (Tr at 25). The defendant stated, in sum and substance, that he was out the prior night drinking Hennessey at a strip club named “Heavens” with a friend, Joey, that he got a vehicle from a friend, and that he did not know that there was a firearm in the trunk (Tr at 26).
The defendant was then transported to the 78th precinct Intoxicated Driver Testing Unit (IDTU) to be examined for the presence of alcohol (Tr at 27). At the 78th precinct, Officer Dirmoti from Highway 2 offered the defendant breath and coordination tests (Tr at 28-29). The entire encounter was memorialized on video, which was admitted into evidence as People's No.1. The defendant took a chemical breath test and registered a 0.05 BAC (Tr at 31). Officer Mignone then read the defendant his Miranda rights again (Tr at 32). This second reading of the Miranda rights is depicted on the video. On the video, the defendant agrees to speak with Officer Mignone and Officer Mignone is seen and heard asking the defendant questions from the Intoxicated Driver Examination (IDE) form which the defendant answers.
When the IDTU testing was completed, the defendant was transported back to the 83rd precinct and brought to the detective squad where he was interviewed by Detective Whiteman, with Officer Mignone present (Tr at 32-33). A video of the interrogation was admitted into evidence as People's # 2. On the video, Detective Whiteman is observed giving the defendant his Miranda rights. The defendant indicated his understanding and agreed to speak to the detective. The defendant admitted having a fight with his friend Joey, going to Joey's house at 68 Garden Street, where he had a pipe and broke a window. He denied knowledge of a gun.
At some point, Officer Mignone responded to 68 Garden Street and spoke to an individual named Christopher Santos, who he referred to as “the original 911 caller” (Tr at 36-37). Mr. Santos told Officer Mignone that the perpetrator was his son's childhood friend, that he had the firearm, and was yelling for his son to come outside (Tr at 37-38). Mr. Santos also gave a description of the vehicle and stated that the gun was put into the vehicle's trunk (Tr at 38).
The red Kia was transported back to the 83rd precinct where it was processed by the Evidence Collection Team (Tr at 38-39). The firearm was recovered from the trunk, photographed, and vouchered (Tr at 39-40). Photographs of the firearm were submitted into evidence at the hearing as People's # 3A, 3B, and 3C.
Officer Justinico has been with the NYPD for eight years (Tr at 48). I credit his testimony to the following extent: On February 14, 2017, Officer Justinico was working in uniform together with Sergeant Serrano (Tr at 49). At approximately 7:30 AM, he received a radio transmission of “a gun run” with information that “the suspects were currently fleeing towards Myrtle and Bushwick Avenue” (Tr at 50). Officer Justinico arrived and observed Officer Mignone and his partner conducting a car stop of a red sedan (Tr at 50-52). He observed the defendant was standing at the rear of the vehicle with his hands on the trunk, not in handcuffs (Tr at 51-52). He moved the defendant away from the trunk of the vehicle because the radio transmission indicated there was a firearm in the trunk (Tr at 52). Officer Justinico instructed the other officers to open the trunk and if they saw a firearm to not touch it and close the trunk (Tr at 52). When Officer Justinico told the other officers to look in the trunk, the defendant stated, in sum and substance, “It's not my girl's, that's mine, it's mine” (Tr at 53). The defendant was then placed under arrest (Tr at 54).
CONCLUSIONS OF LAW
Motion to Suppress
At a Dunaway hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Moses, 32 A.D.3d 866, 823 N.Y.S.2d 409 [2nd Dept. 2006]; see also People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262 ; People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905  ). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562  ).
The testimony elicited before this court establishes that upon seeing a vehicle bearing the license plate number provided over the police radio and observing that the defendant also matched the description provided, Officer Mignone and his partner approached the vehicle, which was already stopped at the intersection of Troutman and Bushwick Avenues. The officers approached with their weapons drawn and trained on the defendant. This undeniably constitutes a seizure as contemplated by the Fourth Amendment. Such a seizure requires, at a minimum, that the police have reasonable suspicion to believe that the occupants of the vehicle were involved in the commission of a felony or misdemeanor (see People v. Figueroa, 38 A.D.3d 796, 797, 833 N.Y.S.2d 528 [2nd Dept. 2007] ).
The defendant argues that the People have failed to establish that the police had reasonable suspicion to seize the defendant from within his vehicle. He submits that because the information provided to the police came from an anonymous 911 caller, it must meet the two prongs set forth in Aguilar-Spinelli 1 : a basis for the informant's knowledge and the reliability of the informant's information. It is his contention that the People have failed to establish either prong. He asserts that while the police received information that a male Hispanic was brandishing a firearm and that the firearm was put into the trunk of a vehicle, there was no testimony elicited establishing the informant's basis of knowledge, that is, whether the anonymous informant personally observed the alleged acts or whether the information provided by the informant was obtained from another source. With respect to the reliability prong, the defendant argues that the information provided by the anonymous caller lacks any predictive information that could be used to test the reliability of the information. He further submits that the information regarding the vehicle's direction of flight cannot be considered predictive information because there is nothing in the record indicating that the information came from the 911 caller versus a police officer in pursuit of the vehicle. In support of his position, the defendant relies on Florida v. JL, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), People v. Moore, 6 N.Y.3d 496, 814 N.Y.S.2d 567, 847 N.E.2d 1141 (2006), and People v. Bailey, 164 A.D.3d 815, 82 N.Y.S.3d 514 (2nd Dept.2018).
The People argue that the information provided by the 911 caller, which included a detailed description of both the individual and the vehicle, including a license plate number, gave the police probable cause, or at the very least, reasonable suspicion that there was criminal activity afoot and thus, the car stop was lawful. He further submits that once the defendant exited the vehicle, Officer Mignone observed the defendant exhibiting signs of intoxication which gave the police probable cause to arrest the defendant for driving while intoxicated.
Seizure of the Defendant
It is undisputed that the information regarding the defendant came from a 911 call. At the time of the defendant's seizure, Officer Mignone had information that a Hispanic male had brandished and waved a firearm outside of 68 Garden Street. Officer Mignone had also been given a description of a vehicle: first a red Ford, then a burgundy Mazda, then a red vehicle bearing a Pennsylvania license plate with the plate number. There was no testimony elicited at the hearing, however, establishing that Officer Mignone knew the identity of the 911 caller prior to approaching the defendant. In fact, in their closing argument, the People concede that “Officer Mignone did not testify directly about his knowledge of who that individual was,” but contend “that individual was a named individual” who “provided his name to the 911 dispatcher” (Tr at 94). Mr. Santos may very well have provided his name to the 911 dispatcher, but the record before this court fails to establish that Officer Mignone knew the identity of the caller when he forcibly detained the defendant at gunpoint. Accordingly, the court finds that at the time of the defendant's seizure, Officer Mignone was acting on an anonymous phone tip (see People v. Williams, 136 A.D.3d 1280, 1282, 24 N.Y.S.3d 464 [3rd Dept. 2016] ). The fact that Officer Mignone later returned to the location of the incident and spoke to an individual who identified himself as Christopher Santos, the “original 911 caller,” does not change the analysis (see Bailey, 164 A.D.3d 815, 82 N.Y.S.3d 514, *2 [although individual who reported incident later disclosed his identity to police, his identity was unknown when police stopped vehicle and ordered defendant out at gunpoint] ). As stated above, the lawfulness of the police conduct must be evaluated in light of the information available to the police at the time of the seizure (see, e.g., De Bour, 40 N.Y.2d at 215, 386 N.Y.S.2d 375, 352 N.E.2d 562).
Courts have routinely held that information provided by an anonymous 911 caller, if sufficiently corroborated, can provide police with reasonable suspicion (see Florida v. JL, 529 U.S. at 270, 120 S.Ct. 1375, citing Alabama v. White, 496 U.S. 325, 327, 110 S.Ct. 2412, 110 L.Ed.2d 301 ; see also People v. Argyris, 24 N.Y.3d 1138, 1140, 3 N.Y.S.3d 711, 27 N.E.3d 425  ). To support the reasonable suspicion required, the anonymous tip must “be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” (Florida v. JL, 529 U.S. at 272, 120 S.Ct. 1375). Thus, the issue this court must determine is whether the information provided by the 911 caller “exhibit[ed] sufficient indicia of reliability to provide reasonable suspicion” for the defendant's seizure (id. at 270, 120 S.Ct. 1375, quoting Alabama v. White, 496 U.S. at 327, 110 S.Ct. 2412).
In Florida v. JL, supra, the Supreme Court considered the reliability of an anonymous 911 call that reported a male black standing in a bus stop wearing a plaid shirt carrying a gun. When the police arrived at the location, they observed the defendant matching the description. Other than the 911 call, there was nothing about the defendant's behavior from which to suspect any wrongdoing. One of the officers approached the defendant, frisked him, and recovered a firearm from his pocket. The Supreme Court found that the tip lacked indicia of reliability and suppressed the gun. In its rationale, the Court distinguished the reliability of an accurate description from the reliability of an “assertion of illegality” (Florida v. JL, 529 U.S. at 272, 120 S.Ct. 1375).
Here, there is no doubt that the police were given an accurate and detailed description of the defendant, but as stated by the highest court of our land, it is the reliability of the assertion of criminal activity that must be established for an anonymous tip to supply the reasonable suspicion required for a seizure. The tip herein did not show that “the tipster ha[d] knowledge of concealed criminal activity” (id.).
The reliability of an anonymous tip was also addressed by the Court of Appeals in People v. Moore, supra. In Moore, the police responded to an anonymous 911 call of a dispute involving a male black, wearing a gray jacket and red hat, approximately 18 years old, who possessed a gun. When officers arrived within one minute of the call, they did not see any dispute but observed the defendant matching the description. As the officers approached the defendant, he walked away. In response, the officers, without any verbal inquiry, immediately drew their guns and yelled “police, don't move.” The Court found that this was “unquestionably” a seizure which required reasonable suspicion. In granting suppression of the gun, the Court held that “[a]n anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip” (Moore, 6 N.Y.3d at 499, 814 N.Y.S.2d 567, 847 N.E.2d 1141).
And just recently, in People v. Bailey, the Second Department suppressed a firearm where the predicate for the seizure was an anonymous tip. The facts in Bailey are akin to the facts before this court. In Bailey, the police responded to a gas station after receiving a report of a man with a gun in a white BMW. The police also received a description of the man and the BMW's license plate number. The police pulled the vehicle over and approached with their guns drawn. The officer ordered the occupants out of the car and observed the defendant reach under the seat. Once the defendant exited the vehicle, he was frisked and a firearm was recovered from his boot. After the defendant was handcuffed, an individual approached the police, identified himself as the caller, and identified the defendant as the person with the gun. The Court held that “[t]he police lacked reasonable suspicion to stop the vehicle based only on an anonymous tip of a ‘a man with a gun’ since the tip came from an individual who ‘neither explained how he knew about the gun nor supplied any basis for believing he had information about the defendant’ and the report ‘did not show that the tipster had knowledge of concealed criminal activity’ ” (Bailey, 164 A.D.3d at 818, 82 N.Y.S.3d 514 [internal citations omitted] ).
The People's contention that Bailey is readily distinguishable from the instant case is unpersuasive. The People assert that in Bailey, the officers “testified that, in fact, they had no information about the identity of the individual who made the call” and they “affirmatively testified they did not have any basis to corroborate [the caller's] information,” whereas here “Officer Mignone testified that he had in his vehicle the I-CAD report, the sprint report, [and] radio communications” (Tr at 94). The People further maintain that the 911 caller provided his name, location and relationship to the defendant, and that such information is contained in the I-CAD report which was available to police officers on the scene (Tr at 94-95). While the court credits Officer Mignone's testimony that he received further details in regards to the call from central over the radio, that he has a tablet and department cell phones in the vehicle, and is able to see and read everything that is typed up and put over the radio (Tr at 14), at no point did Officer Mignone specify that he actually read a print out of the 911 call for this case and that such information contained the identity of the 911 caller. Nor did he ever state that he heard the name or identity of the 911 caller over the radio.
Here, as inBailey, there is nothing from which the court can determine the informant's basis of knowledge. There was no testimony as to whether the informant's information came from personal observations or another source. Nor was it established that the tipster had knowledge of concealed criminal activity. As such, the tip herein did not supply the police with the reasonable suspicion required to justify their gunpoint seizure of the defendant.
The case cited by the People, People v. Stewart, supra, does not lend support to the People's argument that the police conduct at issue here was lawful. In that decision, the Court of Appeals decision in Stewart addressed the propriety of the police intrusion in two separate matters: People v. Williams and People v. Stewart. In Williams, the police received an anonymous tip of an individual with a weapon, described as a “little dude” with a black overcoat and black hat whose name was Donald standing in front of a specified location. The caller refused to provide his identity to the police. The police responded to the bar and observed the defendant matching the description. One of the responding officers recognized the defendant from prior dealings and knew him by name. As the officer approached the defendant, he observed a bulge in the defendant's overcoat. He then patted the defendant down and based on his experience, determined that the bulge was a gun. The officer then reached into the defendant's pocket and recovered a loaded revolver.
In Stewart, the police responded to a report of a man with a gun, described as a male Black wearing a long green coat in front of a specified location. An officer proceeded to the location and observed the defendant, wearing a long green coat, with four or five other individuals. He called for the defendant to stop and the defendant began walking towards the officers. The officer noticed that the defendant's coat was unbuttoned and observed a bulge in his front pants pocket. Without any inquiry, the officer touched the outside of the bulged pocket and felt a hard cylindrical object which he knew was not a gun. Nevertheless, the officer reached into the pocket and removed 8 bullets. The defendant was then frisked and a revolver was found in a shoulder holster under his coat.
The Court of Appeals found the police intrusion in Williams reasonable, but not so in Stewart. The Court noted that, without more, an anonymous tip of a man with a gun only gives the police “the common-law power to inquire for purposes of maintaining the status quo until additional information can be acquired” (Stewart, 41 N.Y.2d at 69, 390 N.Y.S.2d 870, 359 N.E.2d 379 [internal citations omitted] ). The Court found Williams distinguishable in that the officer who stopped the defendant personally handled the tip, saw that the defendant matched the description, and personally knew the defendant (id.). In Williams, there was more than an anonymous tip, there was corroboration by the officer which elevated the level of permissible police intrusion.
Here, there was no such corroboration. When the police first observed the defendant, he was seated in the driver's seat of a stopped vehicle at an intersection. The police did not observe the defendant engage in any criminal activity. In the absence of “additional information or additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior,” the anonymous tip herein only authorized the police to conduct a common-law right of inquiry (Moore, 6 N.Y.3d at 500-501, 814 N.Y.S.2d 567, 847 N.E.2d 1141).
Search of the Trunk
With respect to the search of the trunk, the defendant argues that the police lacked probable cause to conduct such a search. He submits that the search cannot be qualified as a search incident to a lawful arrest.
The People counter that the search of the trunk was appropriate under the automobile exception to the search warrant requirement. In support of their position, the People rely on People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982), People v. Fulton, 189 A.D.2d 778, 593 N.Y.S.2d 53 (2nd Dept. 1993), and People v. Simpson, 244 A.D.2d 87, 676 N.Y.S.2d 552 (1st Dept. 1998).
Under the automobile exception, when a police officer has made a lawful arrest of a person inside a vehicle, and the officer believes that the car may contain evidence related to the crime the individual is arrested for, the officer may contemporaneously search the passenger compartment of the vehicle (Belton, 55 N.Y.2d at 55, 447 N.Y.S.2d 873, 432 N.E.2d 745). The rule from Belton applies to property kept inside a vehicle, including its trunk (Fulton, 189 A.D.2d at 780, 593 N.Y.S.2d 53; Simpson, 244 A.D.2d at 90, 676 N.Y.S.2d 552). The automobile exception is only applicable when there has been a lawful arrest predicated upon probable cause.
As set forth above, the police lacked reasonable suspicion to seize the defendant and his vehicle at gunpoint. That the police, after ordering the defendant out of his vehicle at gunpoint, observed that the defendant exhibited signs of intoxication does not convert the police conduct here into lawful conduct. The fact remains that the police did not have reasonable suspicion to seize defendant's vehicle nor did they have probable cause to arrest him for driving while intoxicated. First, contrary to the People's assertion that the defendant's vehicle “was stopped, that it was in the middle of the street in a busy intersection, that the keys were in the ignition, [and] that the defendant was driving that vehicle when he exited” [Tr at 86], neither officer made any mention of keys in the ignition or that they observed the defendant actually driving the vehicle. The only testimony elicited was that at the time the police approached, the vehicle was stopped at the intersection and the defendant was seated in the driver's seat (Tr at 16-17). Thus, the People have failed to establish the operation element required to sustain a charge of driving while intoxicated. Moreover, even if the People could establish that the defendant was operating the motor vehicle, the officer's observations of the defendant's alleged intoxication came after the police unlawfully seized him at gunpoint. It is well established that a defendant's later conduct cannot validate an encounter that was not justified at its inception (see De Bour, 40 N.Y.2d at 215-6, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. McIntosh, 96 N.Y.2d 521, 527, 730 N.Y.S.2d 265, 755 N.E.2d 329  [“Since a police encounter cannot be validated by a later-acquired suspicion, the investigator's subsequent observations of defendant do not cleanse the initial request of its shortcomings”] ). Because the police lacked probable cause to arrest the defendant, the recovery of the gun from the trunk cannot be justified under the automobile exception. Additionally, the lack of probable cause renders the police request that the defendant submit to a chemical breath test invalid (People v. Johnson, 134 Misc. 2d 474, 511 N.Y.S.2d 773 [Crim. Ct., Queens County 1987] ).
It goes without saying that the information provided to the police by the anonymous 911 caller “merited investigation by the police, just not immediately at gunpoint” (Moore, 6 N.Y.3d at 501, 814 N.Y.S.2d 567, 847 N.E.2d 1141). Here, the 911 call gave the police, at most, a common-law right to inquire. Officer Mignone and his partner exceeded their authority when they forcibly detained the defendant in his vehicle at gunpoint. Accordingly, the defendant's motion to suppress his noticed statements, the recovery of the gun, the officers' observations, and the results of the chemical breath and coordination tests taken at the IDTU, as fruits of his unlawful seizure is granted.
Motion to Preclude
The defendant's motion, made pursuant to CPL 710.30(3), to preclude any statements allegedly made by him at the IDTU on the grounds that the People failed to give notice of such statements is granted. In their argument, the People concede that those statements were not properly noticed and submit that they do not intend to elicit those statements on the People's direct case (Tr at 89).
This constitutes the Decision and Order of the Court.
1. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
Joanne D. Quiñones, J.
Response sent, thank you
Docket No: 1325-2017
Decided: October 18, 2018
Court: Supreme Court, Kings County, New York.
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