Summary
In People v. Aponte, 36 Misc.3d 1230(A), 2012 WL 3516876 (Bronx Co.2012), an unreported case cited by the People, the motion court upheld a frisk of the defendant for a violation level offense.
Summary of this case from People v. BruknerOpinion
No. 074099C–2010.
2012-08-14
The PEOPLE of the State of New York, v. Steven APONTE, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Masateru Marabushi, Esq., Aaron Kaplan, Esq., for People of the State of New York. Jennifer Uhrowczik, Esq., Zooey Root, Esq., Bronx Defenders, Bronx, for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Masateru Marabushi, Esq., Aaron Kaplan, Esq., for People of the State of New York. Jennifer Uhrowczik, Esq., Zooey Root, Esq., Bronx Defenders, Bronx, for Defendant.
DOMINIC R. MASSARO, J.
New York City Police Department's use of “stop, question and frisk” tactics has been the subject of controversy in our courts for more than a decade (see generally, Floyd v. City of New York, 813 F.Supp.2d 417 [SD N.Y.2011]; Daniels v. City of New York, 99 Civ. 1695[SAS][SD N.Y.1999] ). While it is clear that police can briefly stop any individual upon reasonable suspicion that a crime is being committed (see generally, Floyd v. City of New York, 2012 U.S. Dist. Lexis 68676 [SD N.Y.2012] ), the issue here is whether the stop, question and frisk search violates the Fourth and Fourteenth Amendments to the United States constitution and Article 1, § 12 of the State Constitution when the activity initiating the frisk is a violation.
Relying upon CPL § 710.20(1) and CPL § 60.45,
.Penal Law § 10.00(3) defines a violation as an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.
Defendant Steven Aponte initially sought evidentiary suppression of a box cutter that was found on his person by Police Officer Nelson Garcia while searching him during a frisk. Subsequently, Defendant limited his omnibus motion to the suppression question in his post-hearing submission (see, Post–Suppression Hearing Memorandum, p. 19).
.CPL § 710.20 provides, in pertinent part, that “[u]pon motion of a defendant who (a) is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action, ... a court may .... order that such evidence be suppressed or excluded upon the ground that it ... (1) Consists of tangible property obtained by means of an unlawful search and seizure under circumstances precluding admissibility thereof in a criminal action against such defendant....”
CPL § 60.45 (Rules of evidence; admissibility of statements of defendants) provides, in pertinent part, that
“(1.) Evidence of a(n) .... admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made.
(2.) (A) statement is “involuntarily made” by a defendant when it is obtained from him: ...
(b) By a public servant engaged in law enforcement activity....:
....
(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States.
In response to the omnibus motion, the Court held a Mapp–Huntley–Dunaway
hearing on April 4, 2012, where the parties were given leave to submit evidence concerning whether a “pat down” search that produced the box cutter
See generally, Mapp v. Ohio, 367 U.S. 643 [1961];People v. Huntley, 43 N.Y.2d 175 [1977];Dunaway v. New York, 442 U.S. 200 [1979] ).
and included Defendant's statements concerning disorderly conduct
Admin.Code § 10–134.1(e).
violated the Fourth Amendment's constitutional protections against unreasonable searches (see generally, In re M. A., 188 Misc.2d 714, 729 N.Y.S.2d 597 [Fam. Ct. Bronx 2004] ).
.Penal Law § 240.20(5) (obstructing traffic) and Penal Law § 240.20(6) (congregating in public place).
Findings of Fact
Our Legislature requires a court determining suppression motions to set forth upon the record its findings of fact, conclusions of law, and reasons for determination (see, CPL § 710.60[6] ). As required, the Court does so here (see, People v. Dover, 294 A.D.2d 594 [2nd Dept.2002] ):
This incident occurred on November 28, 2010, at 4:18 a.m. in Bronx County (Tr. page 5). Officer Garcia, assigned to the 46th Precinct, was working with a “conditions team” when he observed Defendant and other individuals congregating at Featherbed Lane and Nelson Avenue (Tr. pages 5 to 8). The group was blocking the sidewalk, acting boisterously and interfering with pedestrian traffic from a nearby social club (Tr. page 10).
When Officer Garcia arrived at the scene, he ordered the group to disperse and clear the sidewalk. However, Defendant remained fast and instead questioned the officer's authority while making certain statements that he now seeks to suppress. In reaction, the officer ordered Defendant against a wall and frisked him. Officer Garcia's justified the frisk primarily upon safety concerns.
During the frisk, the officer discovered a box cutter in Defendant's waist band, arrested him and transported him to the local station house. At the precinct, Officer Garcia questioned Defendant about his pedigree and determined that Defendant was subject to Administrative Code § 10–134.1(e) based, in part, upon age, which Defendant admitted to being less than 21 years old.
In regard to his hearing testimony, the Court finds Officer Garcia to be plausible and credible in all respects.
Defendant made two other statements to police before the frisk which he seeks to suppress.
Defendant's Position
Defendant argues for suppression of the box cutter because the prosecutor fails his burden to establish a reasonable cause to frisk (see generally, People v. Dodt, 61 N.Y.2d 408 [1984] ). Under any circumstances, a prosecutor's burden requires plausible and credible evidence which, Defendant says, has not been produced (see generally, People v. Void, 170 A.D.2d 239, 567 N.Y.S.2d 216 [1st Dept.1991] ).
Defendant says the stop and frisk here is neither legally, nor factually, justified as it lacks a plausible basis. Defendant's legal argument is that the stop and frisk violates the Fourth and Fourteenth Amendments, as well as N.Y. State Const., Art. 1, § 12, because no probable cause existed for the frisk, the conduct extant amounting only to a violation (see generally, People v. De Bour, 40 N.Y.2d 210 [1980] ).
While claiming law enforcement cannot frisk upon mere suspicion that a violation was committed, Defendant apparently admits a frisk is valid where, in fact, a violation occurred in the officer's presence (see, CPL § 140.10[1][a] ).
In People v. DeBour, supra., the Court of Appeals established a four level test for evaluating the legality of police initiated street encounters with civilians. According to Defendant, when an offense is committed in police presence (level four), probable cause is required (see, CPL § 140.10[1][a] ).
Concerning factual issues, Defendant did not behave in an improper manner and his conduct gave no reasonable grounds for anyone to conclude that police safety was compromised. Defendant says the Court must disregard safety concerns since a law enforcement agent's otherwise unsubstantiated subjective belief of danger cannot justify a frisk (see generally, People v. Forrest, 77 A.D.3d 511, 909 N.Y.S.2d 61 [1st Dept.2010]; People v. Gonzalez, 295 A.D.2d 183, 743 N.Y.S.2d 112 [1st Dept.2001] ). Defendant says the record shows he was engaged in normal behavior when Officer Garcia approached him, and, as such, his conduct provided no basis for a frisk. Under any circumstances, Defendant says, the prosecutor fails to show Defendant annoyed the community, persisted after receiving police warnings, or created a disordered risk (see generally, People v. Maher, 137 Misc.2d 162, 520 N.Y.S.2d 309 [Crim Ct. New York 1987] ).
No disorderly conduct exists where pedestrians are merely inconvenienced without more, even when the events involved occurred at an early morning hour (see generally, People v. Jones, 9 N.Y.3d 259 [2010] )
Based thereupon, Defendant says no reasonable cause exists to have justified the frisk; thus, the box cutter cannot be used in this prosecution (see generally, People v. Square, 2008 N.Y. Slip Op 51632U [Crim Ct. New York 2008] ). Further, Defendant claims Officer Garcia went beyond frisking into a full-blown search for contraband for which he lacked probable cause (see generally, People v. Robinson, 125 A.D.2d 259, 509 N.Y.S.2d 803 [1st Dept.1986] ).
Prosecutor's Position
The District Attorney opposes suppression, arguing instead that the police officer had both reasonable cause to conduct the frisk and probable cause to charge disorderly conduct (see generally, People v. Todaro, 26 N.Y.2d 325 [1970] ). In addition, the officer was empowered to frisk upon a common law right to ensure his own safety (see generally, People v. King, 102 A.D.2d 710, 476 N.Y.S.2d 847 [1st Dept.1984] affirmed,65 N.Y.2d 702 [1985] ).
Turning to the statements made to Officer Garcia during the investigation, the prosecutor says each statement was voluntarily given and no Miranda warning was required. Further, the admissions qualify as res gestae and as such should not be suppressed (see generally, People v. Garcia–Lopez, 308 A.D.2d 366, 764 N.Y.S.2d 264 [1st Dept.2004]; People v. Wells, 133 A.D.2d 385, 519 N.Y.S.2d 553 [2nd Dept.1987] ). Finally, the prosecutor characterizes each statement as made during a permissible street investigation (see generally, People v. Huffman, 41 N.Y.2d 29 [1976] ).
Conclusions of Law
Initially, the Court finds Defendant retains the ultimate burden, at a suppression hearing, of proving illegal police conduct, while the People have the initial burden of going forward concerning legality of police conduct (see People v. Jackson, 30 Misc.3d 1202(A)[Sup Ct. Bronx 2010] ).
Concerning the instant suppression motion, the prosecutor relies exclusively upon Officer Garcia's testimony. Defendant called no witnesses. After hearing Officer Garcia's testimony and observing his demeanor, the Court finds such testimony to be credible. Upon this record, Defendant's motion to suppress evidentiary use of the box cutter is denied. Instead, the Court finds Officer Garcia possessed reasonable cause to conduct the frisk and he acted in accordance with statutory and constitutional limitations even though the underlying offense was a violation (see, People v. Nichols, 250 A.D.2d 370, 672 N.Y.S.2d 326 [1st Dept.1998] ).
In testing constitutional limits for a stop and frisk, the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) set forth factors to weigh when determining whether a stop and frisk is constitutional: (1) the police officer must observe unusual conduct; (2) such conduct leads to a reasonable suspicion that criminal activity may be afoot; and (3) the officer must have the ability to point to specific facts justifying the suspicion.
In the instant case, the police met all factors applicable to stop and frisk.
See generally, Harvey & Davies, Article: Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 Fordham Urban L.J. 457 (2000).
The Criminal Procedure Law codifies Terry and authorizes police officers to make limited intrusions upon personal liberty in public places for investigative purposes.
In 1985, the Legislature addressed frisks that arose in the context of felonies and misdemeanors (see, CPL § 140.50 [3] ). The statute empowers an officer, who stops a person, and who reasonably suspects danger of physical injury, to search such person for a weapon capable of inflicting such injury and such weapon is of a sort not ordinarily carried in public places by law-abiding persons (see, People v. Square, supra.).
.CPL § 140.50 authorizes a police officer “to stop a person in a public place ... when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor.” Once a stop has been made, New York law authorizes a frisk of the person only if the officer “reasonably suspects that he is in danger of physical injury.” These provisions form the core of what is popularly referred to as New York's “Stop and Frisk Act.”
While the statute applies to felonies and misdemeanors, the Court finds that police retain power to frisk even in violation situations where the officer must always be accorded the right to take protective and precautionary measures as the situation might dictate (see generally, Evans v. Solomon, 2011 U.S. Dist. Lexis 15624, 2011 WL 609806 [ED N.Y.2011] ) (see also, People v. King, supra.).
Although the statute uses the word “search,” the Legislature intended to cover police action that is more commonly referred to as a “frisk” ( see Kamins, New York Search and Seizure § 2.05[1][2008 ed] ). Simply stated, a “frisk” is a limited touching of a suspect for the purpose of discovering or feeling any dangerous weapons (see, People v. Francis, 108 A.D.2d 322, 489 N.Y.S.2d 166 [1st Dept 1985] ).
In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976), our Court of Appeals established a four-level analysis for evaluating police conduct in street encounters. As relevant here, when applying the analysis, De Bour finds that where police have reasonable suspicion that the person committed, is committing, or is about to commit a crime, a stop and detain to gain explanatory information is sanctioned. Police may also pat-down a suspect for weapons if it is reasonable to suspect danger of physical injury (see generally, De Bour, supra. at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 (citing CPL § 140.50[3] ). Finally, police may arrest a defendant and take him into custody when probable cause exists that the defendant is committing, has committed or is about to commit a crime (but see generally, People v. Tyler, 30 Misc.3d 1218(A) [Sup Ct. New York 2011] ).
Case Law
In considering the instant motion, the Court finds that the issue of whether a stop and frisk applies to criminal violations has only been sparingly addressed by our courts. Notwithstanding, the Court of Appeals provided guidance in at least one case that predates the enactment of CPL § 140.50(3). The High Court teaches that a stop arising from a violation does not ordinarily justify a frisk, but does permit a limited pat down for a concealed weapon because there a defendant acted in an uncooperative and suspicious way ( People v. King, supra.). The Appellate Division, in a case factually similar to that presented here, found a frisk is permitted where a violation is involved when a defendant exhibits uncooperative conduct (see, People v. Nichols, supra.).
The Nichols defendant was detained for an Administrative Code violation, but, nevertheless, exhibited nervousness and hostility toward the officer. The Appellate Division reasoned that the Nichols defendant's conduct provided a reasonable belief that he could be armed, thereby placing safety into issue. The view that a frisk for a violation can invoke safety concerns for a police office is shared by at least one additional court where unlawful possession of marijuana was involved (see, Penal Law § 221.05) (see, People v. Jason F., 181 Misc.2d 653, 694 N.Y.S.2d 908 [Just. Ct. Horseheads Village 1999] ) and in a case involving the Vehicle & Traffic Law (see generally, People v. Jones, 39 A.D.3d 1169, 834 N.Y.S.2d 810 [4th Dept.2007] ).
In Jason F., supra., although the defendant was eventually acquitted upon other issues, the Court approved the stop and frisk where unlawful possession of marijuana was the only charge. Likewise, in a traffic violation case, police officers frisked passengers in a lawfully stopped vehicle to the extent necessary to guard their safety acting on reasonable suspicion that criminal activity was afoot and an articulable basis concerning fear for their own safety (see, People v. Jones, supra.). Further support for safety concerns in violation cases arises in People v. Hazelwood, 104 Misc.2d 1121, 429 N.Y.S.2d 1012 [Crim Ct. Queens 1980] ), where the trial court found that a police officer, who issues an appearance ticket, retains the right to search a person even when he has no immediate fear for his safety or belief that the person being searched has a weapon.
While some of the noted cases arose prior to enactment of CPL § 140.50(3) in 1985, the public policy remains no less valid. The Court emphatically rejects any claim that law enforcement's right to search for safety reasons suddenly disappears when a violation is involved. As the Hazelwood court found, such an interpretation would be inconsistent with the police's ability to provide safety for investigating officers (see, Id.).
Based upon the forgoing, the Court finds that safety concerns likewise justify stop and frisk here. As long as law enforcement has reasonable suspicion, the stop and frisk meets constitutional requirements. Stop, question and frisk allows police to investigate suspicious persons and pat them down for weapons within the boundaries of constitutional protections while providing for officers' safety (see, United States v. Sokolow, 490 U.S. 1 [1989] ).
The officer here was confronted by a defendant who refused to dispurse when requested. Not only was Defendant defiant, but he chose to confront the police at an early morning hour while the incident remained under investigation. The Court finds Defendant's refusal to disperse when directed, the late hour, the frequency of partying club goers, and Defendant's negative attitude in the face of law enforcement provided reasonable suspicions grounds concerning safety and, thereby, justifying the instant frisk (but see, Brown v. Texas, 443 U.S. 47 [1979] ).
Safety Justification
As stated by the Supreme Court in Terry, supra., an officer must always be accorded the right to take protective and precautionary measures as a situation might dictate (see, Terry, supra.) (see generally, People v. King, supra ). “Stop, question and frisk” allows law enforcement to question suspicious persons while attending constitutional guidelines for when police pat a suspicious person for weapons (see generally, United States v. Sokolow, supra ). Further, the Court finds the frisk was proper here in that Officer Garcia limited himself to patting down Defendant's outer clothing when the box cutter was discovered (see, Minnesota v. Dickerson, 508 U.S. 366 [1993] ).
Contrary to Defendant's assertions, Officer Garcia testified credibly about safety concerns affecting him and his fellow officers.
See generally, Harvey, Comment: Minnesota v. Dickerson and the Plain Touch Doctrine: a Proposal to Preserve Fourth Amendment Liberties During Investigatory Stops, 58 Alb. L.Rev. 871(1985).
Stated another way, police may briefly detain a person for investigative purposes, during a Terry (supra.) stop, where the officer has reasonable suspicion, supported by articulable facts, that criminal activity may be afoot, even if the officer otherwise lacks probable cause (see, United States v. Sokolow, supra.). Here, the police officer's testimony, reciting events surrounding the frisk, convinces that the police officer had reasonable suspicion he might be in danger even though the underlying charge was a violation.
Finally, the Court gives great weight to the fact that the violation that formed the grounds for the frisk occurred in the officer's presence (see generally, CPL § 140.10[1][a] ). This was not a baseless unlawful stop.
See generally, Bajaj, Note: Policing the Fourth Amendment: the Constitutionality of Warrantless Investigatory Stops for past Misdemeanors, 109 Colum. L.Rev. 309 (2009).
Concerning the disputed statements that Defendant seeks to suppress, Movant fails to specifically address the issue in the post hearing papers; rather, he apparently urges the Court to rely upon factual and legal discussion about suppression of the box cutter as carrying the same weight for the statements. The Court rejects the suggestion.
Conclusion
Upon this record,
the Court finds that the police acted with reasonable suspicion that safety concerns existed; thereby justifying Defendant's frisk during which the box cutter was discovered. The Court finds that Officer Garcia conducted the frisk within constitutional guidelines and that the evidence obtained, pursuant to that search, is admissible.
In deciding the instant motion, the Court read (1)Defendant's Notice of Omnibus Motion; Affirmation of Jennifer Uhrowczik, Esq.; (2) affirmation in opposition to Defendant's Omnibus Motion, of Maseteru Marabushi, Esq., and (3) Post–Suppression Memorandum of Law in Support of Steven Aponte's Motion to Suppress Physical Evidence and Statements; with hearing transcript.
WHEREFORE, based upon the foregoing, it is
ORDERED that Defendant's motion, seeking suppression of certain physical evidence and statements obtained by police during Defendant's November 27, 2010 arrest, is DENIED.
The foregoing constitutes the Decision and Order of this Court.