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The PEOPLE of the State of New York, Plaintiff, v. Tyriq REEVES, Defendant.
Defendant Tyriq Reeves is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03). This Court conducted a combined Mapp/Dunaway hearing on December 22, 2017.
The People called one witness, Detective William Rojas (ShieldNo. 4944) of the New York City Police Department's Bronx Narcotics Unit. Defense called no witnesses. For the reasons that follow, the defendant's motion to suppress two ziplock bags of crack cocaine that was recovered from his person is GRANTED.
FINDINGS OF FACT
Detective William Rojas testified as the only witness at the hearing. This Court finds the detective's testimony to be credible. On the date of the alleged incident, Detective Rojas was assigned to the Bronx Narcotics Unit as a New York City police officer. He has made over 300 arrests in his nine-year career, about 200 of which were for possession of controlled substances. Since his transfer to the Bronx Narcotics Unit from the 42nd Precinct in 2014, he has received additional training on recognizing different types of narcotic drugs. Also, he has observed more than 100 drug sales during his career.
On May 29, 2015, Detective Rojas was in a police vehicle with his partner, Sergeant Pulgarin. They were wearing plain clothes in an unmarked car. Their duty for the day was to conduct narcotics observations. Around 7:25 in the evening, they were in the vicinity of 1111 Westchester Avenue, which was a known narcotics-prone location. Westchester Avenue runs East to West with two lanes for vehicles each way. The detective testified that it was a clear day with a moderate pedestrian and vehicular traffic. It was still daylight, but with the dusk settling.
While the detective was driving around 1111 Westchester Avenue, he observed a double-parked car on the right lane, facing westbound. Both front windows of the double-parked car were rolled down. As the detective was passing it to the left, he observed an individual approaching the double-parked car. He later learned this person's name to be Tyriq Reeves, the defendant in this case. Detective Rojas testified that he observed the defendant approaching the double-parked vehicle on the passenger side and reaching inside the car through the open window. Both the driver's and the defendant's hands met in the middle of the car. Their hands were in the shape of a cup and a small unidentified object was exchanged. The witness testified that when he observed this, he had just passed the double-parked vehicle, but he was able to see through the rear passenger side window of his car. He was approximately five to ten feet away.
After conducting what appeared to the detective to be a hand-to-hand drug transaction, the defendant stepped off the street and went back to the sidewalk. The detective stopped his vehicle and approached the defendant, stating “I'm police” and “put your hands up.” When the defendant complied, Detective Rojas proceeded to pat him down. During the frisk, Detective Rojas felt a small, hard object in the defendant's right pants pocket, which turned out to be two ziplock bags containing crack cocaine. It was made clear that during the detective's observation of the defendant, nothing resembling a weapon was observed. The detective testified that he was trained to conduct frisks for safety reasons and that he did so in this case for his safety. The bags of crack cocaine were vouchered and the defendant was arrested.
CONCLUSIONS OF LAW
In a suppression hearing, the burden is on the prosecution to first establish the legality of the police conduct (See e.g. People v. Whitehurst, 25 NY2d 389, 391 ; People v. Wise, 46 NY2d 321, 329  ). The People must present to the court not only credible evidence (People v. Berrios, 28 NY2d 361  ), but also facts—not merely conclusions or beliefs of the witnesses (People v. Dodt, 61 NY2d 408  ). Once the prosecution meets this initial burden, the defendant bears the ultimate burden of showing the illegality of the police conduct (See e.g. People v. Di Stefano, 38 NY2d 640, 652 ; Berrios, at 367).
The subject of the Mapp/Dunaway hearing in this case was two bags of crack cocaine that Detective Rojas recovered from the defendant's right pants pocket. At the heart of the dispute in this case is whether the hand-to-hand transaction that Detective Rojas observed in a “drug-prone” location, viewed through the lens of his training and expertise, gave him probable cause to arrest the defendant. The People contend that it did. Accordingly, the People aver that the drugs were recovered during a search incident to a lawful arrest, and cannot be suppressed. In the alternative, they argue that the police had the authority to frisk the defendant, which led to the discovery of the drugs. Once the drugs were found, the police had probable cause to arrest the defendant.
On the other hand, the defendant argues that Detective Rojas had, at most, a common-law right to inquire. As such, the detective could not have forcibly detained the defendant for the frisk that followed. Moreover, even if the police were justified in forcibly detaining him, the defendant asserts that the frisk was unlawful because there was no independent and reasonable basis for the detective to fear for his physical safety. The defendant asks the Court to suppress the drugs as a product of an illegal search.
In New York, street encounters between the police and private citizens are governed by People v. De Bour (40 NY2d 210 ; see also People v. Hollman, 79 NY2d 181  ). De Bour charted four levels of police intrusions and the quantum of suspicion necessary to justify them. Under De Bour, when the police have some objective and credible reason, not necessarily indicative of criminality, they may approach citizens to request information. A common-law right to inquire is activated when there is a founded suspicion that criminal activity is afoot. At this level, an officer's inquiry may be extended and accusatory. Where the police have a reasonable suspicion that a person has committed, is committing, or is about to commit a crime, they may forcibly stop and detain that person. Furthermore, at this level, if there is an independent and reasonable suspicion that the officer is in physical danger, the officer may frisk the detainee. Finally, an arrest is authorized on probable cause to believe that a person has committed a crime.
The seminal case on probable cause for street narcotics arrests is People v. McRay (51 NY2d 594  ). McRay was a combined appeal of three separate cases, all of which involved observations of passing of glassine envelopes in an area known for drug transactions. In determining whether the police had probable cause, the Court of Appeals examined several factors such as whether a glassine envelope, which was termed a “telltale sign of heroin,” was observed; the pervasiveness of drug trafficking in a particular community; police officer's experience and training in narcotics investigations; whether money was passed in exchange for the envelope; and whether there was additional evidence of furtive or evasive behavior by the participants. In a case that followed McRay, the Court of Appeals further clarified that a “telltale sign” of narcotics is a strong indicator for finding of probable cause, but not indispensable. Hence, in People v. Jones, the court found probable cause when the officer observed an unidentified object being exchanged for currency, and the object was handled in a way that was consistent with it being a drug (90 NY2d 835, 837 ; see also People v. Schlaich, 218 AD2d 398, 401 [1st Dept 1996][“The time has come to end our fixation with packaging”] ).
Applying the standards established by McRay and its progeny to this case, the Court holds that the police did not possess probable cause to arrest Tyriq Reeves. As a threshold matter, the Court fully credits Detective Rojas' experience, training, and expertise. The Court further accepts the detective's description of the area where the alleged transaction took place as a “drug-prone” location.1 However, there was no probable cause. The detective could not describe the item in question or its packaging. He did not see any currency being exchanged. There was no testimony concerning any additional furtive movement by either participant to the transaction. Thus, the passing of an unidentified object between the defendant and the driver of a double-parked car lacked any of the “telltale signs” of a drug transaction.
The Court's holding is guided by People v. Thompson (4 Misc 3d 126[A][App Term, 2d Dept, 9th & 10th Jud. Dists 2004] ). In that case, the defendant was observed speaking with another person on the sidewalk of a drug-prone location. An experienced narcotics officer observed an exchange between the two, “without observing the transfer of currency or any identifiable object bearing the ‘telltale sign’ or ‘hallmark’ of an illegal substance” such as packaging (id. at *1). After this observation, the officer approached and directed the defendant to open his hand, which led to the recovery of drugs. The defendant was convicted of drug possession and resisting arrest. The appellate court reversed the convictions, finding that the level of intrusion by the police was not justified by what the officer observed.
In a similar case, another court held that the police only had a common-law right to inquire when the defendant was observed in an “early morning ‘huddle’ with two other individuals in front of a known drug location” (People v. Wilson, 201 AD2d 399, 399–400 [1st Dept 1994] ). The court found that the officer's direction to the defendant to stop and take his hands out of his pockets was not a justified level of intrusion (Compare People v. Murphy, 267 AD2d 254 [2d Dept 1999][given the officer's training and experience and the large number of drug sales in the area, police had reasonable suspicion when the officer observed a hand-to-hand transaction where the defendant received money for a small item] ). Thus, the holdings in Thompson and Wilson establish that an exchange of an object for currency is essential in establishing probable cause or reasonable suspicion (see also McRay, at 604 [“To begin with the most obvious, if money is passed in exchange for the envelop, probable cause almost surely would exist. Exchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest”] ). The fact that an exchange of an item occurs in a drug-prone location and that it is observed by an experienced narcotics officer does not, without more, give rise to probable cause or reasonable suspicion.
Indeed, in other cases where the courts have found probable cause, there were more factors present in the hearing record evincing indicia of a drug transaction. For instance, in People v. Spencer, an experienced officer observed the defendant engage in hand-to-hand exchange of an unidentified object for currency in a drug-prone location (146 AD3d 731 [1st Dept 2017] ). In that case, the court found probable cause where the defendant was a known drug dealer and the arresting officer had knowledge from an officer in an observation post that the defendant had met with a buyer in a nearby park and directed the buyer to the parking garage where the sale occurred.
In People v. Jones (90 NY2d 835), an officer observed an exchange of an unknown object for money in a drug-prone location. Although the officer was unable to observe the item that was exchanged for money, the court held that a probable cause existed where the trained officer observed “other indicia of a drug transaction” such as the way that “the other participant handled the unidentified object in a manner typical of a drug sale” (id. at 837). Moreover, after the exchange, the defendant suspiciously concealed a plastic bag among some nearby cinder blocks which could “raise the particular inference to a trained observer that defendant was hiding the remainder of his ‘stash’ ” (id.; see also People v. Thomas, 48 AD3d 314, 314–15 [1st Dept 2008] [suppression properly denied where a narcotics officer observed “a pattern of suspicious actions by defendant and other participants in the transaction, which, when viewed as a whole and in light of the officer's expertise, was inconsistent with a transfer of some lawful item and instead indicated that defendant had just acquired drugs”]; People v. Soto, 28 AD3d 264 [1st Dept 2006] [probable cause existed where an experienced officer observed the defendant and another man engage in a “pattern of furtive conduct” and the defendant was “holding his hand in his pocket in a manner that suggested he was trying to conceal a weapon or other contraband”] ).
In this case, the record is devoid of sufficient indicia of a drug transaction that would allow the Court to find probable cause or reasonable suspicion. Detective Rojas did not observe any currency being exchanged. He did not describe how the item was handled and whether such handling of the item was consistent with an illicit drug based on his training and experience. He could not see how the packaging of the item. There was no testimony about whether either participant reached into their pockets, bags, center console of the car, or any other place where the “stash” could be located. Neither party had engaged in any conversation prior to, during, or after the transaction. The police did not observe other individuals engaging in a similar pattern of furtive, evasive, or suspicious conduct. There was no testimony that the detective had information from other officers or through an anonymous tip that a participant in the transaction was a drug dealer or otherwise known to possess contraband. Under such circumstances, the behavior of two people briefly putting their cupped hands together in which an unidentified object was exchanged does not rise to the level of a “telltale sign” of a narcotics transaction. A conduct “which occurs ‘just as frequently ․ in innocent transactions’ as in criminal transactions ‘is too equivocal to form the basis for ․ a warrantless arrest’ ” (McRay, at 602 citing People v. Russell, 34 NY2d 261, 264  ). Accordingly, the detective had no more than a common-law right to inquire at the time that he approached the defendant.
An officer's actions must be justified at its inception (Terry v. Ohio, 392 US 1, 19  ). At common-law right to inquire, an officer may ask questions that focus on criminality of the person, which elevates the encounter from a “merely unsettling one to an intimidating one” (Hollman at 192). At this level of suspicion, the officer may interfere with a citizen “to the extent necessary to gain explanatory information, but short of a forcible seizure” (De Bour at 223).
An officer may forcibly stop and detain a person when he or she has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. A forcible seizure occurs when a reasonable person believes “that the officer's conduct was a significant limitation on his or her freedom” under the circumstances (People v. Bora, 83 NY2d 531, 535 [citing People v. Hicks, 68 NY2d 234, 240  ). Furthermore, at this level, CPL § 140.50(3) authorizes an officer to search the detainee “for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons.” This is not an unfettered right, however, as there must exist an independent and reasonable suspicion that the suspect is armed and dangerous (People v. Russ, 61 NY2d 693  ).
In this case, Detective Rojas testified that he directed the defendant to stop and put his hands up. When the defendant complied with this direction, the detective frisked the defendant. This action amounted to a forcible seizure. A reasonable person in the defendant's position would not have felt free to leave (see e.g. People v. Moore, 6 NY3d 496, 501  [“a forcible stop requires reasonable suspicion that the suspect has committed a crime, not merely the founded suspicion—triggering the officers' common-law right of inquiry—present here”]; Matter of Brandon D., 95 AD3d 776 [1st Dept 2012] [a juvenile was seized when he complied with the officer's order to stop] ). This level of intrusion was not justified.
Even if what the police observed was sufficient to establish a reasonable suspicion, the outcome does not change. Here, the defendant was never observed to be in possession of a weapon or any other dangerous instrument. Police did not have any information or tips regarding whether the defendant may be armed. The detective testified that the defendant complied with his direction to stop and put his hands up (Compare People v. Dawson, 243 AD2d 318 [1st Dept 1997] [defendant's failure to comply with direction to remove hands from his pockets and to come towards the police justified frisk]; Matter of Clarence W., 210 AD2d 71 [1st Dept 1994] [police justified in conducting frisk where the juvenile refused to take hands out of pockets and actively resisted the officer's attempt to place his hands on wall] ). The defendant did not engage in any movement that would indicate that he was carrying a weapon. There was no testimony from the witness for the Court to conclude that he had an independent and credible reason to fear for his safety. Under the circumstances, the frisk of the defendant was not legally permissible.
Accordingly, the defendant's motion to suppress the physical evidence recovered in this case, to wit, two ziplock bags of crack cocaine recovered from his pants pocket, is granted.
This constitutes the decision and order of this Court.
1. The Court is reminded by the language in Judge Fuchsberg's concurrence, “I respectfully suggest that the reputation of the particular neighborhood in which illegal conduct happens to occur should not be a significant factor in finding probable cause. Arrests are made of individuals, not of neighborhoods” (McRay, at 606 [Fuchsberg, J., concurring] ).
Tara A. Collins, J.
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Docket No: 2015BX025259
Decided: January 26, 2018
Court: Criminal Court, City of New York,
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