Opinion
10-0023.
Decided May 21, 2010.
WILLIAM J. FITZPATRICK, ESQ., District Attorney of Onondaga County.
BRIDGET A. SCHOLL, ESQ., of counsel, Attorney for the People.
EDWARD W. KLEIN, ESQ., Attorney for the Defendant, Jamel Bradford.
Pursuant to the Defendant's request, the Court has held a suppression hearing and as a result thereof, the Court has made the following FINDINGS OF FACT and CONCLUSIONS OF LAW :
FINDINGS OF FACT
The Court finds from the credible testimony at hearing that on December 31st, 2009 at approximately 5:36 p.m., Officer Brent Potts, a police officer assigned to the Crime Reduction Team of the Syracuse Police Department, was travelling in a marked vehicle with his partner Officer Sean Thomas in the area of 300 Rich Street in the City of Syracuse when they observed a black Dodge Durango license plate number EUA8052 fail to signal as it turned right from Rich Street onto Sterling Ave in violation of Vehicle and Traffic Law Section 1163(d). Upon making this observation, Officer Potts activated his lights and sirens to conduct a vehicle and traffic stop of the vehicle however the vehicle did not stop. Officer Potts then advised dispatch of the vehicle's failure to comply and requested assistance. Officer Potts testified that there were three occupants of the vehicle, the driver, front seat passenger and a rear seat passenger. Officer Potts further testified that he followed the vehicle which continued travelling on Sterling Ave and then turned right on to Palmer Ave, again without signalling at which time he made the observation that the front seat passenger, Jamel Bardford, was not wearing his seat belt. Still failing to comply, the vehicle then turned right on Bellevue Ave and continued just passed Sheridan Street at Holland and pulled over to the left side of the shoulder at which time Officer Potts terminated the failure to comply call. Officer Potts then proceeded to the right side of the vehicle and again observed the front seat passenger without his seat belt on. As the vehicle came to a stop, the driver exited the vehicle and fled, running westbound on Holland Street. The defendant also exited the vehicle and ran westbound on Holland Street. Officer Potts testified that he observed the defendant run down the middle of Holland Street and not use the side walk which was otherwise clear and safe for pedestrian travel. Officer Potts detained the rear seat passenger while Officer Thomas pursued the driver and another officer in a marked vehicle that was heading eastbound on Holland Street pursued the defendant, Jamel Bradford. Officer Potts testified that he was then advised that the defendant was apprehended by Officer Malone and was asked by Officer Malone to conduct a field test of a white chunky substance that Officer Malone had recovered from the defendant's pocket incident to his arrest of the defendant for Vehicle and Traffic Law Violation Section 1156-a. The test result of the substance was positive for the presence of cocaine. Officer Potts formerly issued vehicle and traffic tickets to the defendant for a seatbelt violation and for failing to use the sidewalk (Vehicle and Traffic Law Violation Sections 1229-c 1156-a). An inventory search of the vehicle was also conducted revealing marijuana under the rear passenger seat, a digital scale and five cell phones.
Syracuse Police Officer Michael Malone testified that on December 31st, 2009 at approximately 5:36 p.m. he was assigned to patrol the south side of the City of Syracuse and while in the 200 block of Holland Street he heard a radio transmission regarding a failure to comply. Subsequent to the initial chase disptach, Officer Malone then heard a second call cancelling the failure to comply indicating that the chase was terminated. Officer Malone then observed the vehicle that was described in the failure to comply abruptly stop at the intersection of Sheridan Drive and Holland Street. Officer Malone described the vehicle as being a black Dodge Durango, New York Registration EUA8052. Officer Malone then observed the front seat passenger flee the vehicle eastbound running in the middle of the street down Holland Street in his direction. Officer Malone testified that at the time he observed the individual running, the sidewalk was clear for pedestrian travel. This Court finds as a fact from the credible testimony and evidence presented that the sidewalk was clear and could be used safely when Officer Malone and his partner commenced their foot chase of the defendant. Based upon this observation along with his knowledge that the vehicle the defendant was fleeing from had been the subject of a police chase, Officer Malone and his partner exited their patrol vehicle. The Court finds as a fact that upon seeing Officer Malone and his partner, the defendant altered his direction and started running south in between two houses on Holland Street, 229 and 233. Officer Malone cut behind 229 Holland Street and jumped the fence that surrounded 229 Holland Street. Once behind the houses, Officer Malone did not observe anyone running and he testified that he believed the defendant was still in that immediate area. Officer Malone then searched the backyard and in the southwest corner behind a tree, he located the defendant, Jamel Bradford, laying in the snow. The defendant was then taken into custody for the vehicle and traffic violation for failing to use the sidewalk and was searched incident to that arrest. As a result of Officer Malone's search, he located a white chunky substance consistent with crack cocaine in the defendant's front pants pocket. Also recovered from the defendant was two cell phones and $436. The Court also finds from the credible testimony that Officer Potts had probable cause to arrest the defendant Jamel Bradford for his failure to wear a seat belt in violation of Vehicle and Traffic Law Section 1229-c(3).
The defendant, Jamel Bradford, testified at the hearing on his own behalf. Mr Bradford stated at approximately 5:30 p.m. on December 31st, 2009, he was the front seat passenger of a Dodge Durango and that said vehicle was being pursued by the police for the driver's failure to comply with the lights and sirens of the police. The driver then stopped the vehicle at the intersection of Holland Street and Sheridan Drive in Syracuse at which time he exited the vehicle and ran up Holland Street. Mr. Bradford testified that he ran in the roadway but near the curb because the sidewalk was covered with snow. Mr. Bradford did admit however that the sidewalk was clear at the driveway entrance to 229 Holland Street and that is where he ran, straight back in between two houses and into the backyard while he was being pursued by the police and ultimately was found by the police hiding in the snow behind a tree. Mr. Bradford indicated that he had a New York State Driver's License, parole identification and a benefit card with him that day. He also admitted that he also possessed cocaine in his right pants pocket along with four hundred and thirty six dollars in cash and two cell phones.
CONCLUSIONS OF LAW
"Any inquiry into the propriety of police conduct must weigh the degree of intrusion which it entails against the precipitating and attending circumstances which created the encounter ( People v DeBour , 40 NY2d 210, 223; People v Powell , 246 AD2d 366, 368). The court's focus must be on whether the police conduct was reasonable in view of the totality of the circumstances ( People v Batista , 88 NY2d 650, 653, People v Montilla , 268 AD2d 270) for, as we have stated in the past, reasonableness is the touchstone by which police-citizen encounters are measured (see, e.g., People v Alexander , 218 AD2d 284, 288)" People v Brown , 277 AD2d 107, 108.
The burden of proof lies with a defendant who challenges the admissibility and seeks the suppression of physical evidence. It is he who must convincingly show that said evidence was searched for and seized from him in an unlawful manner and, therefore, should not be introduced against him at trial. Not withstanding, it is the People who bear the initial burden of showing the legality of police conduct at its inception (see People v Wesley , 73 NY2d 351; People v DiStefano , 38 NY2d 640; People v Berrios , 28 NY2d 361).
In the present case, the defendant, Jamel Bradford, contends that the Court should suppress any and all evidence recovered during a search of his person upon the grounds that the police lacked sufficient legal justification for the search of the defendant which resulted in the recovery of the cocaine, that is the subject of this indictment.
On the other hand, the People contend that based upon the totality of the facts and circumstances of this case, the police had probable cause to believe that the driver of the vehicle the defendant was in had committed a Vehicle and Traffic Law violation and the police personally observed the defendant commit two additional Vehicle and Traffic Law violations (Section 1229 and 1156) and that based upon those observations and the defendant's flight from the police, the police acted reasonably in arresting the defendant and searching him incidental to such lawful arrest. This Court agrees.
The Court of Appeals in People v DeBour , 40 NY2d 210, set out a four tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity:
The first level permits an officer to approach a citizen and request information, provided the police have some objective credible reason for the intrusion, not necessarily indicative of criminality ( DeBour , supra at 223; see also, People v Holloman , 79 NY2d 181, 184; People v Ocasio , 85 NY2d 982, 985). Although the informational inquiry is merely a limited intrusion on a citizen's right to privacy, it cannot be used arbitrarily by the police. Thus, while the police have "fairly broad authority" to approach and pose questions, they may not do so on mere "whim or caprice"; the request must be based on "some articulable reason sufficient to justify the police action" ( DeBour , supra at 216).
The second level is the common law right of inquiry, a wholly separate level of contact, which is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion. The distinction between this level and the first level rests, to some extent, on the content of the questions, the number of questions asked, and the degree to which the language and the nature of the questions transform the encounter from a merely unsettling one to an intimidating one (see, People v Holloman , 79 NY2d 181, 192).
Under level three, where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed (see, Criminal Procedure Law Section 140.30(3) ). And finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.
Clearly, any inquiry into the propriety of police conduct must weigh the degree of intrusion which it entails against the precipitating and attending circumstances out of which the encounter arose ( People v Salaman , 71 NY2d 869, 870; People v DeBour , 40 NY2d 210, 223; People v Powell , 246 AD2d 366, 368). The court's focus must be on whether the police conduct was reasonable in view of the totality of the circumstances ( People v Batista , 88 NY2d 650, 653; People v Montilla , 268 AD2d 270) for reasonableness is the touchstone by which police-citizen encounters are measured ( People v McLaurin , 70 NY2d 779, 781; People v Brown , 277 AD2d 107, 108; People v Alexander , 218 AD2d 284, 288).
During the course of this hearing, it became clear that the thrust of the defendant's argument was predicated on whether the police in New York are authorized to make a custodial arrest and search incident thereto when a Vehicle and Traffic Violation is involved.
It is well settled that a police officer may lawfully stop a car where that officer has reasonable cause to believe that the driver violated the Vehicle and Traffic Law ( Pennsylvania v Mimms , 434 US 106, 109; People v Ellis , 6 NY2d 393, 396; People v Robinson , 97 NY2d 341; People v Ingle , 36 NY2d 413, 419).
It is apparent from a series of Court of Appeals cases commencing in 1967 that a concern for compliance with New York's constitutional limitations on searches and seizures has led the Court of Appeals to conclude, although not in explicit terms, that it was never the intent of the legislature to provide an unlimited discretion to make a "custodial arrest" or a search incident to that arrest on the basis of a mere traffic infraction.
In People v Marsh , 20 NY2d 98 (1967), the defendant was arrested pursuant to an arrest warrant issued in 1965 for a 1963 traffic violation (speeding). Upon making the arrest, the police searched the defendant and found a sheet of paper which implicated him in illegal gambling. Finding that the arrest pursuant to a warranted was governed by the same rules which would apply if the defendant had been arrested immediately following the traffic infraction, the Court of Appeals carved out a rule that traffic arrests do not warrant a generalized search incident to such arrests.
The Court of Appeals in Marsh stated at 101:
"we can only conclude that even though the rules of criminal law are generally applicable to traffic violations ( People v Byron , 17 NY2d 64, 66), the legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction."
Subsequently, in People v Adams , 32 NY2d 451 (1973), the rule enunciated in Marsh was extended to arrests for traffic misdemeanors.
In 1974, the Court of Appeals in People v Troiano , 35 NY2d 476 stated at 478 "there is, perhaps, an area of traffic violations "arrests" where a full blow search is not justified, but it might seem to be confined to a situation where an arrest was not necessary because an alternative summons was available or because the arrest was a suspect pretext ( People v Marsh , 20 NY2d 98; People v Adams , 32 NY2d 451)."
Finally, in 1980, the Court of Appeals in People v Howell , 49 NY2d 778 re-affirmed its holding in Troiano , in a case where the police had observed the defendant drive away from a traffic light at a high rate of speed and in an erratic manner, and after stopping the vehicle, approached with guns drawn and frisked the defendant finding a loaded revolver.
The Court of Appeal in Howell reversing the appellate division's decision which had affirmed the trial court's denial of the defendant's suppression motion, stated at 779 "the trial court was in error in its conclusion that merely because reckless driving was a misdemeanor rather than a traffic violation, the arrest was inevitable. An arrest in a situation such as was presented in this case was neither called for nor the preferred procedure. . . . As we observed in People v Troiano , 35 NY2d 476, 478 there is perhaps an area of traffic violation "arrests" where a full blown search is not justified, but it might seem to be confined to a situation where an arrest was not necessary because an alternative summons was available or because the arrest was a suspect pretext. . . ."
Thus, the current state of New York State constitutional law appears to be stated in People v Troiano , 35 NY2d 476.
Therefore, the general rule in New York regarding Vehicle and Traffic Law violation arrests should not involve a custodial arrest where there is an alternative to such arrest by the issuance of a summons.
The Court would add however to complete this decision, that the United States Supreme Court in Atwater v City of Largo Vista , 532 US 318 held that it is constitutionally permissible to take a defendant into custody after a traffic infraction. The Supreme Court upheld the custodial arrest involving a misdemeanor seatbelt violation under Texas law that carried a punishment of $50.00 and not jail time. The Court upheld the custodial arrest and adopted a bright line rule that if a police office has probable cause to believe that a individual has committed even a minor offense that carries no jail time, the officer may still make a "custodial arrest" (see also, Virginia v Moore , 553 US 164, 128 S.Ct 1598).
However, despite the Supreme Court rulings, state courts are free to protect the privacy interests of their citizens by imposing higher standards on searches and seizures than required by the Federal Constitution. Thus, a state may choose to regulate arrests in a manner more restrictive than the requirements of the 4th Amendment as interpreted by the Supreme Court.
Clearly based upon Marsh , Adams , Troiano and Howell , our Court of Appeals maintains a more protective view of an individual's rights under our New York State Constitution as those rights protect all citizens from being the subject of an "unreasonable search and seizure" by the police following an arrest for a vehicle and traffic law violation.
This Court would be inclined to hold that the preferred procedure involving arrest for Vehicle and Traffic Law violations in New York without more would be to issue a summons when the police are provided with the necessary information by the arrestee rather than to conduct a custodial arrest. However, under certain circumstances, such procedure while preferable may be rendered impracticable and unreasonable based upon the totality of the facts and circumstances of any given case.
The Court is of the opinion that upon consideration of the totality of the facts and circumstances of this case that the conduct of the police was both reasonable and lawful when the defendant was arrested and searched incident to such lawful arrest.
Based upon the credible testimony presented upon this hearing, the Court is of the opinion that the police had probable cause to believe that the driver of the vehicle had committed a vehicle and traffic law violation prior to and during the police chase. Additionally, the Court finds that the police had observed the defendant himself commit two vehicle and traffic violations for which he was arrested, namely, Officer Potts had observed the defendant violate Vehicle and Traffic Law Section 1229(c)(3) during the chase of the vehicle the defendant was in and then both Officer Potts and Malone observed the defendant violate Vehicle and Traffic Law Section 1156(a) when he fled from the vehicle by running in the street on Holland Street.
Based upon the foregoing discussion regarding "custodial arrest" for traffic violations, the fact that the defendant may have had some sort of identification on his person when arrested does not under the facts of this case constitute a basis upon which to hold that the issuance of a summons was otherwise a reasonable alternative to an arrest.
In each of the Court of Appeals decisions heretofore cited, namely Marsh , Adams , Troiano and Howell , upon which the Court of Appeals relies in setting forth the constitutional limitations upon the police regarding the issuance of a summons rather than an "arrest", none of those cases involved the flight of the subject and a subsequent police chase following the police observations of the vehicle and traffic law violations.
Clearly, the conduct of the defendant demonstrated that the defendant was intent on not cooperating with the police and to not even temporarily submit to their authority for the purpose of the issuance of a summons but rather constituted a clear showing that the defendant wanted to escape from the police and avoid prosecution altogether (see, People v Henry , 181 Misc 2d 689).
This Court cannot disregard the fact that the defendant was a passenger in a vehicle that was the subject of a police chase and that immediately upon the stop of that vehicle, the defendant fled from the police that were initially involved in the vehicle chase and that upon seeing other police officers that had been dispatched, he fled from them as well and attempted to avoid capture.
It would appear under the circumstances that to issue a summons telling the defendant when to appear on his own in court when the defendant had just tried to escape from the police would be unreasonable.
The Court is of the opinion that Article I Section 12 of the New York State Constitution as interpreted by our Court of Appeals in this area protects defendants from "unreasonable search and seizures" and that under the facts of this case, issuing a summons would not have been a reasonable alternative to a "custodial arrest" and that the arrest and incidental search of the defendant Jamel Bradford was in all respects reasonable and lawful.
Therefore, the defendant's Motion to Suppress is denied.
The decision herein constitutes the Order of this Court.