Opinion
Docket No. D-26819-19
11-12-2021
In the MATTERS OF Y.N., a Person alleged to be a Juvenile Delinquent, Respondent.
Joanna Kusio, Esq. for the Presentment Agency Heather Squatriglia, Esq. for the Respondent
Joanna Kusio, Esq. for the Presentment Agency
Heather Squatriglia, Esq. for the Respondent
Peter Passidomo, J.
Respondent made various motions to suppress evidence and the Court granted a combined Mapp/Payton/Huntley/Dunaway hearing. On September 9, 2021, the Presentment Agency withdrew its intent to introduce any statements purportedly made by Respondent on its direct case, thus rendering the Huntley hearing moot. Thus, the Court proceeded with a combined Mapp/Payton/Dunaway hearing. The hearing was held on September 9, 2021; September 21, 2021; September 22, 2021; September 24, 2021; October 7, 2021; and October 8, 2021. At the hearing, the Court heard extensive testimony from New York City Police Detective Christopher McGrisken, New York City Law Department Investigator Amina Williams, and Respondnet's Mother, G.B. The Court also accepted the following exhibits into evidence:
Due to the ongoing public health concerns regarding COVID-19, New York City Family Courts closed after March 25, 2020, and court hearings are primarily held virtually utilizing Microsoft Teams. This hearing was held in a Hybrid Virtual Part, and the following parties appeared in person before the Court: Counsel for the Presentment Agency, the Attorney for the Child, Respondent, Respondent's mother G.B., a Spanish speaking interpreter, an employee from the non-secure detention facility during the duration that Respondent was remanded, and all witnesses who testified before the Court. Additional attorneys, Respondent's sister, and the Department of Probation Court Officer Liaison appeared virtually. Neither party objected to proceeding in this manner.
Presentment Agency's Exhibit 1: surveillance video
Presentment Agency's Exhibit 2: body-worn camera footage of Detective Christopher McGrisken
Presentment Agency's Exhibit 3: photo depicting the vicinity of Prospect Avenue in the Bronx
Presentment Agency's Exhibit 4: body-worn camera footage of Police Officer Joel Ayala
Presentment Agency's Exhibit 5: body-worn camera footage of Sergeant James Lundy
Respondent's Exhibit A: video of incident
Respondent's Exhibit B: video of gate
Respondent's Exhibit C: photo of the front of Respondent's house
Respondent's Exhibit D: photo of the front gate in front of Respondent's house, as depicted from inside the gate
Respondent's Exhibit E: photo of the front gate in front of Respondent's house, as depicted from outside the gate
Respondent's Exhibit F: photo of office schedule
At the end of the hearing, parties gave oral summations and the Court adjourned for its decision. Below, the testimony is summarized in pertinent part, and the Court's decision and reasoning are as outlined.
Testimony of Detective Christopher McGrisken
Detective Christopher McGrisken has been employed with the New York City Police Department for over ten years; he is currently assigned as an investigator in the Gun Violence Suppression Division, where he's been for a little less than a year. Detective McGrisken has participated in approximately 200 arrests, including those of juveniles. Approximately 70 of those arrests have involved a firearm.
On July 20, 2019, he was working as an officer in the Anti-Crime Unit, where he had been assigned for approximately six years. He was working with Sergeant Lundy, Officer Ayala, and Officer Rivera. As an officer in this unit, he was deployed to patrol high crime areas, with a focus on "violent street crimes, robberies, burglaries, and weapons possession." The Anti-Crime Unit does not necessarily respond to radio runs as their arrests are based on their observations of people on the street. Although Detective McGrisken was frequently partnered with Sergeant Lundy, he did not work with Officers Ayala or Rivera as frequently. This was the first time he was with these three officers on patrol.
At approximately 1:35 a.m., Detective McGrisken and his partners were in the vicinity of an intersection at Prospect Avenue in the Bronx, due to an uptick in crime. This area is within the confines of the 42nd Precinct, in an area where Detective McGrisken testified to frequently being deployed to patrol. They were driving in an unmarked vehicle with the windows open. Officer Ayala was driving, Detective McGrisken was in the front passenger seat, Officer Rivera and Sergeant Lundy were sitting in the back of the vehicle. They were in plainclothes; Detective McGrisken was wearing his ballistics vest as his outermost garment of clothing, but his shield and identification card were not displayed. He was wearing a body-worn camera which he had turned on. While they were on patrol, Detective McGrisken observed a group of five to six males on the street corner, including Respondent. There was an odor of marijuana in the air. Officer Ayala stopped the vehicle in the crosswalk and Detective McGrisken began to engage with the group.
At the time of this incident on July 20, 2019, it was a violation of Section 221.10 of the Penal Law to possess marijuana in a public place, when such marijuana is burning or open to public view. See S.B. S854A (NY 2021).
While remaining in the front passenger seat, Detective McGrisken identified himself as a police officer and asked the group what they were doing. Detective McGrisken found the group "friendly"; they responded they were "hanging out, smoking, and drinking." The way the patrol car was pulled over required Detective McGrisken to speak to the group, who were situated on his right side. The group was approximately six to ten feet away. As he was speaking with them, Detective McGrisken was scanning the group, focusing on their hands, waistband areas, and pockets to see if anyone could potentially have a concealed weapon that could hurt him or his fellow officers.
The group was facing Detective McGrisken, with Respondent standing off towards the edge and back of the group. Detective McGrisken could see the front of Respondent and did not have anything obstructing his view. Although it was nighttime, the area was residential and lit by streetlights. It is a busy street with traffic traveling in both directions. Respondent was wearing a white t-shirt, which was untucked, and jeans. Detective McGrisken described Respondent as not necessarily overweight, but nonetheless a "big kid."
Detective McGrisken observed Respondent had an "L-shaped object," what he further described as "the outline of what [he] believed to be the butt of a firearm" in Respondent's left side waistband area, "bulging above [Respondent's] beltline." Respondent then "bladed his body," turning away from the officers and walking away. Respondent, who initially had his hands by his side, tucked his hands in front of him with his hands curled in the area between his hip and where a belt buckle would be. Detective McGrisken observed Respondent "repeatedly putting his left-hand over that area" where the Detective believed to have observed the outline of a firearm. Based on all of Detective McGrisken's observations, he believed Respondent was in possession of a firearm. This caused Detective McGrisken to fear for his own safety and the safety of those in the area.
As Respondent walked away, Detective McGrisken exited the police vehicle, identified himself as a police officer, and asked Respondent to stop, saying he wanted to talk to Respondent. Detective McGrisken did not alert the other officers as to what he intended to do next. Respondent did not stop, and instead "said some profanities" and continued walking away from the Detective and went through the nearby gate surrounding the white house on the corner. At this point, Respondent was alone. As he walked away, Respondent consistently kept his left hand "going to the front of his body."
Respondent entered through the gate. He did not use a key, enter a code, or need to ring a bell to proceed through the gate. There were no signs indicating that the area was private property or that trespassers were not permitted. Respondent proceeded to go up the steps towards the front door of the house. Detective McGrisken picked up his pace to ensure Respondent did not enter the house. When Respondent got to the top of the steps, but before entering through the door, Detective McGrisken stopped Respondent by grabbing Respondent's right wrist, pulling him down the steps, and placing him against the fencing that surrounded the house.
Soon thereafter, Officer Ayala, Officer Rivera, and Sergeant Lundy came over to where the detective and Respondent were against the fence. Detective McGrisken admitted he had not informed his fellow officers why he was detaining Respondent. Respondent was screaming profanities, grabbing the metal posts of the fence, and twisting his body. At one point Respondent threatened to swing at the officers. Detective McGrisken and Officer Ayala moved towards Respondent's right side, Officer Rivera went to Respondent's left side, and Sergeant Lundy began to try to handle the crowd that was beginning to gather behind them.
Detective McGrisken was focused on Respondent's hands, which were still holding onto the fence posts. As his partners assisted in holding Respondent's hands, Detective McGrisken, who was standing behind and to the right side of Respondent, ran his left hand across Respondent's left waistband area, conducting a brief frisk, which did not result in anything being found. He did not frisk Respondent's legs for safety reasons, as Respondent was yelling and pushing off the fence. At this point, Detective McGrisken admitted, "I second guessed myself. I second guessed myself in the observations I made because I know what I had saw. And, yeah, I second guessed myself."
At this point, Respondent was still yelling profanities and screaming, and a crowd was starting to build. On cross-examination, Detective McGrisken stated that at a certain point after he had frisked Respondent, he tried to have Respondent let go of the gate in order to bring him back to the precinct to write him a summons for disorderly conduct. He stated that the basis for this was because Respondent was screaming and yelling, while a crowd was gathering, which created an unsafe environment. Sergeant Lundy was engaged with the surrounding crowd, trying to get them to back up to ensure everyone's safety.
As the officers were trying to talk to Respondent to calm him down, Respondent threw a punch at one of Detective McGrisken's partners. The officers then wrestled Respondent to the ground as he was "actively fighting." Officer Rivera grabbed Respondent's legs to take him down, and then Officer Rivera stated that Respondent had a gun on him. Detective McGrisken observed Officer Rivera remove a firearm from Respondent's left pant leg. The handle of the firearm was equipped with a pinky extender, which causes the butt of the firearm to extend further down the holder's hand to the pinky, as opposed to the ring finger. Respondent was then placed under arrest and removed to the 42nd Precinct.
Testimony of Amina Williams
Amina Williams has been employed with the New York City Law Department as a juvenile justice investigator for the past three years. Ms. Williams investigates matters within the office and, as part of her duties, canvasses for video, searches for witnesses, and conducts image surveillance.
On September 21, 2021, at approximately 12:00 p.m., Ms. Williams visited the residence located at XX58 Prospect Avenue in the Bronx. There is a black gate surrounding the entire building, with a latch that you lift up to enter through the gate, and a broken lock to the side. There is no key, code, or buzzer required to enter through this gate. The building is a two-family residence with a realty company in the basement, which has a separate entrance in the same building. There is a stairway up to the residence, and there are approximately two to four steps down to the realty company, with a buzzer located on the side of the business's door to request to enter. The door has a mailbox attached, with a slot to drop envelopes through. The realty company's information is outside of the door.
Upon following two people who were buzzed into the realty company, Ms. Williams spoke with a man there who introduced himself as Ethan. Ethan told Ms. Williams that he was employed there on the day of the incident and remembered when it occurred. Ethan stated that, on that date, the lock and gate outside remained unchanged. According to Ethan, the lock has been broken and no one had a key. Ms. Williams did not learn how long the lock had been broken. Ethan stated that the mailbox on the door was for people to drop off things like letters and papers.
Testimony of G.B.
G.B. is Respondent's mother. On the date of the incident, she was living with Respondent at XX58 Prospect Avenue in the Bronx, which is depicted in the photo entered as Presentment Agency's Exhibit 3. The building has three units; there is a business located in the basement, and the first and second floor are living residences. G.B. lives on the first floor and another family lives on the second floor. The office in the basement houses a real estate business and has a red awning over the entrance.
As depicted in Respondent's Exhibit C, there is a gate that surrounds the building, creating a small courtyard in front of the house. There is a set of steps that lead up to the front door to the two residences, and a small set of steps leading down to the basement office. G.B. has never seen people who do not live in the building gathering in the yard or sitting on the steps. The landlord does not allow people to congregate on the steps or hang out in the front yard. As G.B. stated, the landlord is "very delicate and careful" about this, and installed cameras there. The entrance of the surrounding gate has a latch that you use your hand to lift. Although there is a lock on the gate it is not used, and G.B. does not have a key for it. This gate and latch are depicted in the video entered as Respondent's Exhibit B, and in the photographs entered as Respondent's Exhibits D and E.
The buzzers for the two residences are located next to the front door to the house. To access the buzzer, a person would need to go through the gate and up the stairs to the front door. The office has its own buzzer next to the office's door. In addition, the office's schedule of business hours is posted on their front door, and on the date of the incident the hours indicated that the office closed at 5:00 p.m. The office's name is not posted on the gate or front door of the office.
The office in the basement of the building is for a real estate company. G.B. has gone to the office to pay her rent or to speak to the owner of the building to have something fixed. To get to the office, she must ring the buzzer and wait for someone to open the door. The owner has other properties, and all of the tenants pay their rent to this office. The door of the office also has a mailbox that you can lift up to put envelopes and other mail into, including rent checks.
Findings of Fact and Conclusions of Law
At a Mapp hearing, the burden is initially on the Presentment Agency of going forward with evidence demonstrating the initial legality of the conduct of the police. Respondent then has the ultimate burden of proving the illegality of the police conduct by a fair preponderance of the evidence. See People v. Pettinato , 69 NY2d 653 (NY 1986) ; People v. Berrios , 28 NY2d 361 (NY 1971).
When analyzing the intrusions of privacy that police inevitably engage in when dealing with civilian street encounters, the Court looks to the framework set out in People v. De Bour and its progeny. 40 NY2d 210 (NY 1976). "Whether or not a particular search or seizure is to be considered reasonable requires weighing the government's interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual's right to privacy and personal security." People v. Cantor , 36 NY2d 106, 111 (NY 1975) (citing Terry v. Ohio , 392 U.S. 1 [1868], Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523 [1967] ). The Court "must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible." De Bour , supra , at 215.
Even when the police lack probable cause to arrest, law enforcement may detain an individual upon reasonable suspicion, for questioning purposes. Dunaway v. New York , 442 U.S. 200 (1979). The individual's Fifth and Sixth Amendment rights would not be violated if the questioning is for a reasonable time and under carefully controlled conditions. People v. Morales , 22 NY2d 55 (NY 1968), (rev'd on other grounds , 396 U.S. 102 [1969] ). Before an individual may be stopped in a public place, a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime. People v. Cantor , 36 NY2d 106 (NY 1975). Reasonable suspicion is that which would cause an ordinarily prudent and cautious person to believe that criminal activity is at hand. Id. The stop will be justified when the police officer can indicate specific and articulable facts which, along with any logical deductions, reasonably prompted the intrusion. Id. (internal citations omitted). Brief detentions are also justified when defendant's behavior is dangerous to the safety of the police or others. See Terry v. Ohio , 392 U.S. 1, 27 (1968).
In conducting this analysis, the Court first credits the testimony of Detective McGrisken, who has been a police officer for over ten years. Detective McGrisken has participated in over 200 arrests, including the arrests of juveniles and those involving firearms. On the date of the incident, he had been assigned to the Anti-Crime Unit for approximately six years. Detective McGrisken and his fellow officers were specifically deployed to patrol high crime areas, with a focus on violent street crimes including weapons possessions.
Detective McGrisken testified that they approached the group that Respondent was with, as they were in an area that had experienced an increase in crime, and he could detect an odor of marijuana in the air. He was sitting in the front passenger seat with the windows rolled down. Although they were in plainclothes, Detective McGrisken identified himself to the group as a police officer. He stated that he asked the group what they were doing, and the group was "friendly," admitting to smoking marijuana while hanging out. At this point, Detective McGrisken is appropriately engaged in a minimal level of intrusion, by prompting the group with a request for information. The presence of this group out late at night in a high crime area provides an objective credible reason to gain information and need not involve any indicia of criminality. The odor of marijuana may have even prompted more pointed and investigatory questions, although there is no evidence that Detective McGrisken or the other officers engaged in more than a general inquiry at this point.
In his testimony, Detective McGrisken stated that although it was nighttime, the area was lit by streetlights, and was a busy street with traffic travelling in both directions. The Presentment Agency's Exhibit 1, which appears to be security footage from the vantage point above the business awning facing the gate entrance toward the street, confirms that the intersection is a well-trafficked area. The area also appears to be fairly lit by streetlights, building lights, and other ambient lighting. In the body-worn camera footage of Detective McGrisken, Officer Ayala, and Sergeant Lundy, the Court can see the bright streetlight that appears to be shining directly over or close to the vicinity where the vehicle stops.
At this point, Detective McGrisken is scanning the individuals in the group, and testified to focusing on their hands, waistband areas, and pockets to see if he could detect any potential concealed weapons. This is reasonable in light of his assignment and deployment, as well as ensuring the safety of himself and his fellow officers while in close proximity to a group of civilians. In Presentment Agency's Exhibit 3, which is a photo of the intersection where the incident occurred, Detective McGrisken marked where he was situated when he first observed Respondent, and where Respondent as standing. It is clear that Detective McGrisken was in very close proximity to Respondent, and would have had sufficient opportunity to observe him in reasonable lighting conditions.
Next, Detective McGrisken clearly described what he saw as an "L-shaped object" which appeared to be "the outline of ... the butt of a firearm ... bulging above [Respondent's] beltline." As later noted, the recovered firearm had a pinky extender on the handle, which caused the butt of the firearm to protrude further out. This would have reasonably made the outline of the firearm more visible to someone from Detective McGrisken's vantage point. Although Respondent was wearing a white t-shirt and jeans, the Court can clearly see in the admitted videos that Respondent's clothes were not so baggy as to make any items concealed in his waistband impossible to see from relatively close proximity.
Then, Detective McGrisken observed Respondent "blade[ ] his body" by turning away from the officers and walking away. He also testified clearly that Respondent appeared to try to conceal his left waistband area, by tucking his hands in front of him and repeatedly putting his hand over the area where Detective McGrisken saw the outline of the firearm. This behavior solidified his suspicions that Respondent was in possession of a firearm, which caused an immediate concern for his own safety and the safety of everyone in the vicinity.
Respondent argues that, at this point, Detective McGrisken should have communicated to his fellow officers what he saw. However, even though Detective McGrisken did not do so, the Court still finds his actions reasonable under the circumstances. Detective McGrisken was clearly acting in a fast-paced, increasingly dangerous environment, and had to react quickly to ensure the safety of himself and those in the area from what he saw as someone walking away with a concealed firearm. If he had verbally alerted his fellow officers of his suspicion that Respondent was carrying a gun while he was still inside of or stepping out of the car, it could have made the situation more dangerous. Instead, Detective McGrisken immediately exited the vehicle and pursued Respondent.
After he exited his vehicle and followed Respondent, Detective McGrisken identified himself again as a police officer and asked Respondent to stop, saying he wanted to talk to him. At this point, Detective McGrisken is engaging Respondent in a level three intrusion, where he has directed Respondent to stop, and is actively pursuing him. To justify this intrusion, Detective McGrisken needed reasonable suspicion that Respondent had committed, was committing, or was about to commit a crime.
Whether or not Detective McGrisken had the appropriate level of reasonable suspicion is based on the totality of the circumstances, based on objective fact. People v. Prochilo , 41 NY2d 759, 762 (NY 1977) ; People v. Sobotker , 43 NY2d 559 (NY 1978) ; People v. Oppedisano , 176 AD2d 667 (1st Dep't 1991). It is well-settled that a suspect's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion. People v. Sierra , 615 N.Y.S.2d 310 (NY 1994).
Here, Detective McGrisken was not only in a high crime area, late at night, confronting a group of individuals on a busy intersection, but he believed he had seen the outline of a firearm. Detective McGrisken was able to describe not only seeing a bulge, but distinctly an "L-shaped object" in Respondent's waistband, that he believed was specifically the butt of a firearm. "It is quite apparent to an experienced police officer, and indeed it may almost be considered common knowledge, that a handgun is often carried in the waistband." People v. Benjamin , 51 NY2d 267, 271 (NY 1980). "[D]efined bulges in the outline or configuration of a gun do warrant a frisk." People v. Taveras , 155 AD2d 131, 137 (1st Dep't 1990) (internal citations omitted). Further, he then observed Respondent behaving in a way that objectively led him to believe that Respondent was attempting to conceal the weapon as he walked away from the police.
Detective McGrisken's testimony was sufficiently articulated to warrant the level three intrusion upon Respondent. This was more than a "mere hunch" or a gut reaction. Contra People v. Fernandez , 87 AD3d 474, 476 (1st Dep't 2011) (reasonable suspicion did not exist where officers saw defendant holding something in the pocket of his sweatshirt near his waistband, but did not testify to any indication of a weapon, "such as the visible outline of a gun") and People v. Powell , 126 AD2d 366, 369 (1st Dep't 1998) (defendant's quick pace, adjustment to waistband during police observation, walking with arm stiffly against body, high-crime area, inconsistent and evasive responses were insufficient to provide reasonable suspicion where no officer testified to observing the outline of a gun, waistband bulge, or any other telltale sign of a weapon).
Once Respondent began walking away, Detective McGrisken was constitutionally authorized to briefly detain and search him, to confirm or dispel his suspicions that Respondent was in possession of a firearm, even if he had not yet seen the firearm. "It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety." Benjamin , supra , at 271. He had a legitimate concern for his safety, and the safety of those around him. See People v. Oppedisano , supra.
So long as Detective McGrisken reasonably believed that his safety or that of others was in danger, he was permitted to conduct a carefully limited search of Respondent's outer clothing in an attempt to discover if he was in possession of any weapons. See Terry v. Ohio , supra. Detective McGrisken testified, and as shown in the admitted video evidence, that as he and his fellow officers held Respondent against the fence, Detective McGrisken "ran his left hand across Respondent's left waistband area, conducting a brief frisk." This frisk did not yield any results, and at this point Detective McGrisken admitted that he "second guessed" himself.
The Court notes that, at this point, Detective McGrisken's testimony is the sole issue on this case, as it informs the Court what level of police intrusion was permitted upon Respondent's privacy. Respondent argues that Detective McGrisken should be discredited, as his testimony about seeing the firearm bulge was "well-rehearsed," and therefore, incredible. However, the Court does not agree with this depiction of his testimony. Not only is his testimony credible based on the facts articulated above with regards to the lighting conditions and proximity to Respondent when Detective McGrisken saw the outline of the firearm, but his subsequent actions and testimony further lead the Court to believe he is telling the truth. Detective McGrisken specifically singled out Respondent from the group, as Respondent was the only one he saw with the outline of a weapon on his person. He had no other reason to exit his vehicle and pursue Respondent had he not believed he was carrying a firearm. Upon detaining Respondent, Detective McGrisken immediately went to where he articulated he saw the outline of the gun — to Respondent's left waistband. In Presentment Agency's Exhibit 1, at 1:49, the Court can see Detective McGrisken is engaging Respondent's left side with his left hand, while his right hand is not touching Respondent. This specific movement confirms that Detective McGrisken was attempting to confirm what he had seen in Respondent's left waistband. Further, his testimony that he "second guessed" himself has a ring of truthfulness, as he would not have second guessed himself unless he confidently expected to find a weapon where he had seen the outline of one mere moments earlier. Here, there was no contradictory testimony as to what Detective McGrisken could have seen that night, as no other officers or witnesses testified as to the incident in question. Contra Matter of Bernice J. , 248 AD2d 538, 539 (2d Dep't 1998), where the officer's testimony was not credible as it was directly contradicted by the other police testimony and documents. More importantly, however, the documentary evidence submitted supports Detective McGrisken's testimony that the area was sufficiently lit so that he could reasonably make out the outline of a firearm on Respondent's person. In addition, the Court can clearly see from the video evidence entered, that while Respondent is seen wearing a white t-shirt and jeans, they are not so baggy as to directly counteract this possibility that the detective could see the outline of a firearm through his clothes. As such, the Court does not find that Detective McGrisken's testimony as "patently tailored to nullify constitutional objections." Id ., citing People v. Lewis , 195 AD2d 523, 524 ). Rather, the Court credits Detective McGrisken's testimony that he believed he saw a firearm concealed in Respondent's waistband, which gave him sufficient reasonable suspicion to conduct a brief stop and frisk of Respondent's person.
For all admitted video exhibits (Presentment Agency's Exhibit 1, Presentment Agency's Exhibit 2, Presentment Agency's Exhibit 4, Presentment Agency's Exhibit 5, Respondent's Exhibit A, Respondent's Exhibit B), all numbers following the name of the exhibit denote the time in the video that the Court is referring to. Numbers to the left of the colon represent the minute(s), while numbers to the right represent the second(s).
The facts in the Presentment Agency's cited cases are analogous here. In Matter of George G. , the First Department upheld the Family Court's findings crediting the arresting officer's testimony that "at night in a high crime area, the officer saw a bulge in appellant's waistband whose shape was consistent with the grip of a pistol. In addition, as the police approached, appellant adjusted his waistband at the site of the bulge, walked to a nearby pay phone and appeared to be positioning his body in an effort to conceal the side where the bulge was located. This combination of factors provided reasonable suspicion justifying a stop and frisk." 73 AD3d at 624 (1st Dep't 2010) (internal citations omitted). Similarly, in People v. Goldson , the Second Department upheld the lower court's decision to deny suppression "in light of the large bulge observed in the defendant's waistband, the nature of the defendant's movement of his hand down the length of that bulge, the testifying police officer's training and experience, and the other attendant circumstances, the evidence ... established that the police had reasonable suspicion to stop and frisk the defendant." 136 AD3d 1053, 1054 (2d Dep't 2016) (internal citations omitted).
At this point, Detective McGrisken had only conducted this brief pat down of Respondent's waistband, but had not frisked Respondent's legs for safety reasons. He stated it would have been unsafe as Respondent was yelling and pushing off the fence. In the admitted video evidence, the Court can clearly see that Respondent is as tall as, if not taller, than the officers who are attempting to restrain him. Respondent is also broad-statured and it is obvious in the way the officers are persistently re-adjusting their lower bodies against him that Respondent is forcefully pushing against them with his body, while maintaining his grip on the fence. It is not unreasonable to find that, in this set of circumstances, Detective McGrisken could not safely complete his brief pat down of Respondent. Contrary to what Respondent argues, the Court does not believe that the police were obligated to immediately release Respondent once Detective McGrisken's initial pat down did not yield any results. As already found by this Court, Detective McGrisken had sufficient reasonable suspicion to temporarily detain Respondent to effectuate a brief search of his person. This brief detention is not limited in time so long as the actions of the police are reasonable under the circumstance. See People v. Riley , 123 AD3d 947, 948 (2d Dep't 2014) ; People v. Harris , 186 AD2d 148 (2d Dep't 1992). Here, Detective McGrisken admitted he did not conduct a full pat down of Respondent's legs as Respondent's actions presented a safety concern. Presumably, once there was no longer a safety concern, a more thorough pat down of Respondent's legs, which would have remained permissible within the bounds of the level three stop, could have been effectuated.
In the officers' body-worn camera footage admitted as Presentment Agency's Exhibit 2, 4, and 5, the Court can clearly hear the police speaking to Respondent in generally calm, even tones. They are telling him to "relax," to not make things "difficult," and to "let go of the gate." At times, their attitudes may rise to that of general annoyance, but it is obvious they are trying to de-escalate the situation. You can hear one of them say to him "big man, calm down. Listen to me, look at me. Relax. [If] you don't got a weapon you're going to be good. Relax." Presentment Agency's Exhibit 2, at 1:12. However, Respondent is still yelling loudly and swearing at the officers, while gripping tightly to the fence.
At some point while the officers have Respondent against the fence, a woman, presumably Respondent's mother, exits the house and can be heard asking what is happening, to which Respondent loudly yells at her to "watch this," as if he is prepared to do something. This is heard in Presentment Agency's Exhibit 2 at 2:39; in Presentment Agency's Exhibit 4 at 2:03; and in Respondent's Exhibit A at 1:22. Approximately ten seconds later, after Officer Rivera hooks his right arm under Respondent's right arm, and reaches back with his left hand to adjust the radio in his back left pocket, Respondent appears to forcefully push off backwards and turn towards Officer Rivera. Respondent then appears to attempt to hit Officer Rivera briefly before the officers push him towards the ground in the corner where the fence and neighboring building meet. This is clearly seen in Presentment Agency's Exhibit 1 at approximately 3:23; Presentment Agency's Exhibit 4 at 2:13; Presentment Agency's Exhibit 5 at approximately 2:18; and in Respondent's Exhibit A at approximately 1:31.
It is clear from this series of events that Respondent still posed a danger to the officers even after Detective McGrisken conducted his brief pat down of Respondent's waist. Before Detective McGrisken could complete his frisk, Respondent has now appeared to be directly endangering the officers' safety as well as his own. His aggressive physical actions have caused the officers to push him towards the floor in the corner of the area, where the fencing meets the building wall next door. It's clear from the videos that there is an active struggle going on, and there is more yelling coming from the officers, Respondent, and the bystanders. Approximately 15 seconds later, at approximately 3:00 in Presentment Agency's Exhibit 1, it appears one of Respondent's hands is handcuffed. Five seconds later, at approximately 3:05, an officer yells "he's got a gun" three times. Detective McGrisken testified that this officer was Officer Rivera, who he saw remove a firearm from Respondent's left pant leg. The situation becomes more chaotic as the officers appear to still be struggling with Respondent, while aggressively yelling at those nearby to back up. Sergeant Lundy is clearly seen and heard calling for backup which quickly arrives. Eventually, at approximately 4:22, an officer states "I got him cuffed" and you can see Respondent is now on the ground and handcuffed by both hands. He is then brought away and placed in the police car, while still yelling and struggling against the police escorting him. A total of approximately four minutes elapse from the time Detective McGrisken pulled Respondent off the steps to the time he is taken away.
In addition, the Court finds that the recovery of the gun was a result of a search incident to a lawful arrest. Between the time that Detective McGrisken conducted his initial brief pat down of Respondent and the time the gun was recovered, Detective McGrisken testified that he attempted to have Respondent let go of the gate so he could bring him back to the precinct and arrest him for disorderly conduct. The basis of this arrest would have been due to Respondent's screaming and yelling while a crowd was gathering, creating an "unsafe environment."
As pointed out by the Supreme Court in Rawlings v. Kentucky , once the police have probable cause to place someone under arrest, it is not "particularly important that the search preceded the arrest rather than vice versa." 448 U.S. 98, 111 (1980). Here, although Respondent was not formally placed under arrest until after the gun was recovered, so long as the officers had probable cause to arrest Respondent for disorderly conduct when the search took place, it can be considered a search incident to lawful arrest.
Respondent first maintains that the police did not have probable cause to arrest him for disorderly conduct, as his behavior did not cause any public harm, as required by the caselaw under Section 240.20 of the Penal Law. As stated by the Court of Appeals in People v. Weaver , "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes ‘a potential or immediate public problem.’ " 16 NY3d 123, 128 (NY 2011) (citing People v. Munafo , 50 NY2d 326 [NY 326, 331] ).
In support of their argument, Respondent points to People v. Persen , where the Third Department found that the prosecution "fell far short of establishing that the arresting officer had reasonable cause to believe" that defendant was committing disorderly conduct. 185 AD3d 1288, 1293-1294 (3d Dep't 2020). In Persen , the defendant had a tense exchange with the officer, where he walked back and forth, "clenched his fist," and was at one point yelling and swearing. The Third Department found "[t]here was no evidence that the situation extended beyond a tense exchange between defendant and the arresting officer ... [n]or was there any proof regarding the number of people in the vicinity or whether any were drawn to the situation between defendant and the officer." Id. at 1294. Therefore, the prosecution failed to establish any proof of pubic harm to make out the disorderly conduct charge.
The Court does not find the facts in Persen to be analogous here. In contrast, the admitted video evidence shows a large crowd of individuals gathering as the situation escalates. Not only are individuals seen exiting the house and gathering outside the gate, but they are directly engaging with and attempting to interfere with the police. While three officers are attempting to calm Respondent down, Sergeant Lundy has to constantly and directly engage, both physically and verbally, with a bystander. He tells the bystander to back up, in a clear effort to ensure the safety of the officers, Respondent, and those that gathered. At one point, he warns the bystander that if he continued engaging in this manner, he would be arrested for interfering with the police. There are also other bystanders gathering, taking video, and engaging with the police verbally yelling at them to not shoot Respondent. While this is happening, Respondent is repeatedly loudly yelling, screaming profanities, and physically engaging with the officers creating an unsafe environment.
This case draws more parallels with People v. Weaver , supra , which was analyzed in People v. Baker , 20 NY3d 354, 360-361 (NY 2013). In Baker , the Court of Appeals affirmed Weaver and expanded on the factual elements upholding the validity of the disorderly conduct arrest, finding "there was sufficient evidence that defendant's statements and conduct evidenced an intent to create a risk of public harm given the late hour, the quiet nature of the surrounding community and the protracted, increasingly aggressive nature of defendant's vocalizations." Additionally, the defendant in Weaver "refused to stop even after multiple warnings by the police, supporting the inference that the disruptive behavior would continue and perhaps escalate absent interruption by the police." Id. at 362-363.
These facts were contrasted to those in Baker , where the incident occurred during daylight hours on a public street, in a brief outburst that lasted approximately 15 seconds. There was "no basis to infer that [the officer] felt threatened" by the defendant's statements. In addition, the Court of Appeals found that "[a]lthough it is true in this case that a group of bystanders gathered around defendant and his girlfriend—a fact certainly relevant to our public harm analysis—there is no evidence that the bystanders expressed any inclination, verbally or otherwise, to involve themselves in the dispute between defendant and [the arresting officer] ...." Id. at 363.
The facts before the Court, which are plainly visible in the admitted video evidence, show a situation more similarly to Weaver than Baker . The Court disputes Respondent's assertions that the bystanders "were not involved in the encounter in any way." Here, the growing assembly of bystanders around Respondent were gathering, taking video, and yelling at the police. One bystander gets extremely close to where the officers are holding Respondent, and Sergeant Lundy has to repeatedly physically press them back away from the scene. The bystander eventually goes inside the house and retrieves another person who appears to be Respondent's mother. Throughout the incident, Respondent is consistently and loudly yelling, in an area that appears to be mixed residential and commercial use, at approximately 1:30 a.m. He is ignoring the officers' frequent directives to relax and calm down; he grows more aggressive as the situation escalates. As such, the Court finds that even prior to the recovery of the gun, the police had probable cause to arrest Respondent for disorderly conduct.
Respondent also argues that the police could not effectuate a level three or level four stop, as those are limited to when the police suspect a person is committing a misdemeanor or felony, and purposely exclude the suspicion that a person is involved in a violation, such as disorderly conduct. However, the stop effectuated by the police was not because they believed Respondent was engaged in disorderly conduct, but because Detective McGrisken believed he had a weapon. Contra People v. Brukner , 51 Misc 3d 354 (City Co. of Ithaca, 2015) (no evidence the officers observed anything which would have indicated defendant possessed a weapon, and there was nothing threatening or unusual about the defendant's behavior and nothing to suggest he was in possession of any weapon). As such, the stop itself was a result of Detective McGrisken's reasonable suspicion Respondent was committing a misdemeanor or felony and preceded Respondent's subsequent actions that constituted disorderly conduct. Thus, Respondent's argument does not apply.
The facts before the Court are also distinguishable from People v. Reid , 24 NY3d 615 (NY 2014). Although the officers in Reid had probable cause to arrest the defendant for driving while under the influence, as the officer explicitly stated, but for the knife that was found on the defendant as a "search incident to arrest," the officer did not have plans to arrest him. Similarly, in People v. Mangum , although the officers had probable cause to arrest the defendant for littering, the officers did not testify that they had any intent to arrest him until they discovered the gun in his backpack. 3 N.Y.S.3d 332 (1st Dep't 2015). In contrast, Detective McGrisken explicitly stated that prior to the gun being found, he was going to arrest Respondent for disorderly conduct. Therefore, even if Officer Rivera had not found the gun, Respondent would still have been arrested and a search effectuated incident to that lawful arrest.
Finally, Respondent argues that the seizure and subsequent search of his person violated his Fourth Amendment rights, as it occurred in the "curtilage" of his home. The remaining witnesses, Amina Williams and G.B., primarily testified in support of their respective positions on this issue. The Court credits both of their testimony and finds no significant factual dispute between them.
It is a well-established principle under the Fourth Amendment that warrantless searches and seizures within a home are presumptively unreasonable. See Coolidge v. New Hampshire , 403 U.S. 443 (1971). The Supreme Court, in Payton v. New York , 445 U.S. 573 (1980), also prohibited warrantless arrests in the home. In U.S. v. Santana , 427 U.S. 38 (1976), the Supreme Court recognized that under the common law of property, the threshold of one's dwelling and the yard surrounding the house is "private." In contrast, the "open fields" concept, as examined by the Supreme Court in Hester v. U.S. , 265 US. 57 (1924), Oliver v. U.S. , 466 U.S. 170 (1984), and its subsequent progeny, established the area around one's house that is not subject to Fourth Amendment protections. Namely, lands that are usually accessible to the public and the police, that "do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance," are not protected from government intrusion. Oliver , 466 U.S. at 179.
The "open fields" surrounding a house is distinguishable from the "curtilage" of a house. The curtilage, not the neighboring open fields, warrants Fourth Amendment protections that attach to the home. Id. at 180. The curtilage of a house typically extends to the area immediately surrounding a dwelling house. At common law, the curtilage is the area which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life." Id. at 180, quoting Boyd v. U.S. , 166 U.S. 616 (1886). The factors in analyzing what constitutes the curtilage determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. Id. at 180.
In U.S. v. Dunn , 480 U.S. 294 (1987), the Supreme Court delineated four factors relevant to determining if an area constitutes the curtilage of a home. Those factors were: (1) proximity of the area to the house; (2) whether the area is within an enclosure surrounding the house; (3) the nature of the uses to which the area is used; and (4) the steps taken by residents to protect the area from observations by passersby. Id. Here, the Court finds that the area in which Respondent was arrested was not part of the curtilage of his home, and therefore not subject to the same Fourth Amendment protections.
Although the factors in Dunn are not dispositive, they serve a useful analytical tool to begin the Court's analysis. As the Supreme Court cautioned, however, these factors should be used "only to the degree that, in any given case, they bear upon the centrally relevant question — whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendment protection."Dunn , supra at 301. The first factor in Dunn , proximity of the area to the home, weighs in Respondent's favor. Here, the steps are clearly leading up to his front door, where Respondent resides on the first floor. Additionally, the enclosed yard is immediately outside of his home. With regards to the second factor, whether the area at question is included within an enclosure surrounding the house, this also favors Respondent, as the steps and area where Respondent is eventually detained and arrested is within the fence's enclosure. However, this factor weighs less heavily in the Court's analysis, as examined below by the type of fencing that surrounds this enclosure. As noted in both Oliver and Dunn , as well as by the Court of Appeals in People v. Reynolds , "neither the erection of fences nor the posting of ‘No Trespassing’ signs on otherwise open land will establish a legitimate expectation of privacy in the sense required by the Fourth Amendment." 71 NY2d 522, 556 (NY 1988)
The third factor, the nature of the uses of the area, is less favorable to Respondent. The area enclosed by the fence includes the entrance to the office space used by the landlord's realty company. The fence itself is not locked, and access to the public is expected, if not welcome, by the presence of the business located in the basement of the house. Although G.B. testified that the landlord does not allow non-residents to linger on the steps or in the enclosure, there was no testimony or evidence that any of the residents were permitted to use the area as an extension of their home life. The photos entered into evidence do not show any decorations or personal items left out on the steps, nor was there testimony that the area was used as such.
While the Supreme Court in Florida v. Jardines did indicate that the "front porch is the classic exemplar" of a home's curtilage, this is not necessarily akin to a set of shared stairs leading up to the entrances of a two-family home. 569 U.S. at 1 (2013) (citing Oliver v. United States , supra ). The stairs here have neither sufficient space, privacy, nor exclusive use and access to warrant the extension of the curtilage exception that is generally granted to a home's front porch. The circumstances of the stoop here draw more parallels to the finding in People v. Anderson , which established there is no legitimate expectation of privacy in areas which are accessible to all tenants and their invitees. 306 AD2d 536 (2d Dep't 2003) (internal citations omitted). The finding of People v. Land , 198 AD2d 438 (2d Dep't 1993) supports this analysis, as the Second Department found that the defendant's stoop, which was "beyond the threshold of his residence" outside of his front door, was not within the curtilage of his home.
The fourth and final factor in Dunn , steps taken to protect the area from public observation, weigh heavily against a finding of curtilage. As the Court can clearly see from the admitted video and photographic evidence, including Presentment Agency's Exhibit 3, and Respondent's Exhibits C-E, the fencing that surrounds the building do little to shield the enclosure from public observation. The fencing, and included gate, is comprised of what appear to be metal black vertical poles, ranging in thickness to a few inches in width to a few centimeters, with large spacing between the poles that do not primarily serve to block the enclosure from view, but predominantly appear to be used to delineate the boundary in front of the building. Contra People v. Morris , 126 AD3d 813 (2d Dep't 2015) (curtilage found where driveway and front yard was completely closed in by a green slatted chain-ink fence, approximately six feet in height") and People v. Theodore , 114 AD3d 814 (2d Dep't 2014) (curtilage found where defendant's rear yard was shielded from view by those on the street, and within the natural and artificial barriers enclosing the home, which "made manifest the defendant's expectation of privacy, and that expectation is one that society recognizes as reasonable").
The Court does not find the reasoning in People v. Taylor , 92 Misc 2d 29 (Queens Co. Crim. Ct. 1977) to be applicable here. In Taylor , the Criminal Court found that "the hallway and porch or stoop of the defendant's two-family house are not public places [and therefore are] part of the curtilage of his home." Id. at 31. However, in reaching this conclusion, the Criminal Court relied on Subdivision 6 of section 4 of the Multiple Dwelling Law, which defines a private dwelling as "any building or structure designed and occupied exclusively for residence purposes by not more than two families." McKinney's Multiple Dwelling Law § 4 (emphasis added ). Here, it is undisputed that the building in which Respondent lives and was stopped from entering contains a commercial business in the basement. Even though the business was closed when the incident occurred at 1:30 a.m., this did not preclude people who did not live in the building to drop off their rent checks or other correspondence in the mail box at the business's door, which is accessible during non-business hours. Therefore, it is not exclusively used for residence purposes, and neither Section 4 nor Taylor 's reasoning apply.
Although these factors should not be mechanically applied, the Court finds the totality of the circumstances can only lead to the conclusion that the steps, stoop, and enclosed area immediately outside Respondent's house are not part of the home's curtilage, and thus is not afforded the same protections under the Fourth Amendment.
In conclusion, the Court finds that the police acted lawfully in their detention and search of Respondent. The search and seizure did not occur in the curtilage of Respondent's home, and thus neither a warrant nor probable cause was required. Detective McGrisken had reasonable suspicion to briefly stop, detain, and conduct a brief search of Respondent as he had a credible, specific, and articulable belief that Respondent was committing a crime. In addition, he justifiably feared for his safety and the safety of those around him. Before the search could be fully executed, Respondent's actions gave rise to the officers having probable cause to arrest him for disorderly conduct. Thus, Officer Rivera's search of Respondent which yielded in the recovery of the gun was incident to Respondent's lawful arrest. Respondent's motion to suppress the recovered property is therefore denied.
This constitutes the decision and order of the Court.