Opinion
No. N10213/14.
03-24-2016
The PEOPLE of the State of New York v. Shamar DALEY, Defendant.
A.D.A. Courtney Charles, Queens District Attorney's Office, Kew Gardens. Ronald S. Nir, Esq., Forest Hills, Attorney for Defendant.
A.D.A. Courtney Charles, Queens District Attorney's Office, Kew Gardens.
Ronald S. Nir, Esq., Forest Hills, Attorney for Defendant.
ROBERT A. SCHWARTZ, J.
Defendant was indicted on charges of criminal possession of a controlled substance in the fifth degree, obstructing governmental administration in the second degree, resisting arrest, and criminal possession of a controlled substance in the seventh degree. The charges arose out of defendant's possession of four twists of crack cocaine.
On February 1, 2016, a pretrial hearing was held to determine the admissibility of cocaine recovered from defendant's jacket and a statement made by defendant to the police at the precinct acknowledging that a phone found in the jacket belonged to him. The People called one witness, Detective Donnell Myers, whose testimony the court finds credible in all respects. After the hearing was concluded, both parties submitted written memoranda. The court has reviewed the hearing transcript and the submissions of the parties. For the reasons that follow, defendant's motion to suppress the property recovered is denied, but his motion to suppress his statement to the police is granted.
Findings of Fact and Conclusions of Law
The evidence established that at about 9:30 p.m. on November 19, 2013, Detective Donnell Myers was sitting in the passenger seat of a parked, unmarked 2013 Honda Accord at the corner of 132 Street and Rockaway Boulevard, in Queens. His partner, Police Officer Nicholas Neve, was sitting in the driver's seat of the car. Myers and Neve were there because they were working on a long-term gang investigation in the area and because a homicide had occurred nearby earlier that day. It was dark out, but the area was well lit.
Myers was a twelve-year veteran of the New York City Police Department. He had worked in the gang unit for approximately five years and had been involved in approximately 100 arrests for gun-related offenses during his career. Approximately twenty to thirty of those arrests involved apprehending a subject with a firearm on the street. Myers had received training in the concealment of weapons, specifically how weapons could be concealed on a person, in a vehicle, or in a backpack. Myers had also received training in how a person might carry a firearm in his waistband, either in between his body and his jeans, or in a belt used as a holster. Myers received training in recognizing the signs that a person might be carrying a concealed firearm, such as wearing his pants very high on his beltline or engaging in certain mannerisms while walking. In Myers's experience, firearms are usually carried in the groin area of a person's waistband, either directly in front or off to the side.
While sitting in his car that evening, through his open window, Myers observed defendant and another man walking toward him on Rockaway Boulevard. Defendant was wearing an unzipped, purple Marmot ski jacket with a black and white striped hoodie sweatshirt underneath it. Although Myers had never seen defendant before, he was familiar with defendant's name and nickname—“Mar”—and knew defendant to be a member of the Back Street Crips gang. When Myers saw defendant and the other man that evening, Neve said, “That's Mar right there.”
When defendant was approximately fifteen to twenty feet from Myers, the two men made eye contact. Then defendant took his left hand and put it underneath his sweatshirt onto his belt line on his left side. It appeared to Myers that defendant grabbed something with his hand, shifted it, and moved it toward the front of his waistband. This movement lasted one to two seconds. Myers believed that defendant was moving a firearm inside his waistband while continuing to walk toward Myers's car.
When defendant was approximately ten feet from Myers's car, Myers put his hand on the door handle to open the door and get out of the car. As he did so, defendant started running southbound on 132 Street, behind Myers's car. “Pretty much almost as soon as [Myers] got out of [his] vehicle” Myers saw defendant remove a firearm from his waistband with his left hand as he crossed over to the westbound side of 132 Street. Myers identified himself as a police officer and ordered defendant to stop, but defendant kept running and Myers pursued him.
Defendant ran to the middle of the block and turned right toward the backyard of 120–40 132 Street. Myers followed defendant down the driveway, toward the back of the house, where defendant climbed over a PVC fence into the backyard. Myers followed defendant over the fence, and then defendant climbed over a wooden stockade fence into the rear of 120–48 132 Street. It took Myers “some time” to get over the stockade fence and defendant was gone when he finally got over. Although defendant had gotten away, Myers found his purple jacket lying on the ground.
Myers then ran out onto 132 Street where he saw a Nike boot stuck on the top of a fence. Myers did not attempt to climb that fence, because it had spikes on top of it. Instead, Myers called for other units to set up a perimeter. Myers then took the boot and the jacket and put them in his car.
Twenty to thirty minutes later, Myers saw defendant coming out of the backyard of 120–46 133 Street, wearing a striped sweatshirt and no shoes. When defendant reached the sidewalk, he started running northbound on 133 Street toward Rockaway Boulevard. Myers chased him and eventually caught up to him a block away at a bodega on the corner of 133 Street and Rockaway Boulevard. According to Myers, the bodega was a “known gang location.” While Officer Neve grabbed defendant and put him on the ground so he could be handcuffed, Myers told a group of Crips members who were standing on the corner to stay back. Although Neve had defendant on the ground, Myers heard him calling for assistance. When Myers turned he saw that Neve did not have control of defendant. Defendant was on the ground underneath Neve, but he was in a pushup position trying to get up off of the ground. Myers ran to defendant's right side and punched him several times in the face. Defendant fell back to the ground but was still trying to get up. Myers called for assistance on his radio, and additional officers responded in less than a minute. Officers were eventually able to subdue defendant and place him in handcuffs.
Defendant was transported to the 106 precinct, where Myers searched his jacket and found four twists of crack cocaine and an iPhone. While defendant was in a holding cell, Myers asked him if he wanted to make any phone calls, and if the iPhone belonged to him, and defendant said that the phone was his. The gun Myers saw defendant remove from his waistband was never recovered.
The Pursuit of Defendant and the Seizure of His Jacket were Lawful.
Defendant's Pursuit was Lawful.
In People v. De Bour, 40 N.Y.2d 210 (1976), the Court of Appeals “set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime.” People v. Moore, 6 NY3d 496, 498–99 (2006). Police pursuit of an individual requires reasonable suspicion that a crime has been, is being, or is about to be committed. People v. Holmes, 81 N.Y.2d 1056, 1057–58 (1993). “Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit.” Id. at 1058. However, flight alone, or flight in conjunction with circumstances that might justify a request for information, is not sufficient to justify pursuit. Id.; People v. Clermont, 133 AD3d 612, 614 (2d Dept.2015).
In Clermont, the Appellate Division, Second Department, suppressed a gun that the defendant discarded while being chased by police officers. People v. Clermont, 133 AD3d at 614–15. A detective who worked in the gang squad had testified at the suppression hearing that he observed the defendant walking in an area known for gang activity, making constant adjustments to one side of his waistband. Id. at 612. The detective approached the defendant, displayed his shield and identified himself as a police officer, and then chased the defendant when he ran away. Id. at 613. The Second Department determined that the circumstances the detective testified to were not sufficient to justify his pursuit of the defendant, even when those were all considered in conjunction with the defendant's flight from the police. Id. at 614.
In People v. Fletcher, 130 AD3d 1063 (2d Dept.2015), however, the Second Department found, in factual circumstances similar to those here, that suppression of a firearm recovered from the defendant was not warranted. There, the arresting officer testified that he had extensive experience with firearm arrests, that he had been trained to recognize the behavior of people carrying firearms and that people most commonly carry firearms in their waistband. Id. at 1064. The officer testified that as he rode past the defendant—who was walking—the two made eye contact. Id. The defendant then made a movement to adjust his waistband, and in the process pushed aside his jacket and revealed a rectangular shape under his clothing that the officer believed to be the outline of a firearm handle. Id. The Court found that those circumstances, coupled with the officer's experience and training, were sufficient to permit him to request information from the defendant. Id. at 1065. Then, when the defendant increased his walking pace after the officer and his partner got out of their car and announced their presence, they had reasonable suspicion to stop and frisk him. Id.
This court finds that Fletcher applies here. At the hearing in this case, Myers testified about his extensive experience in apprehending subjects carrying firearms and his training in how subjects carry and maneuver concealed weapons. Based on that training and experience, when Myers observed defendant—a known gang member—who was walking down the street, reach into his waistband and appear to grab an object and move it toward the front of his waistband, Myers reasonably believed that defendant was moving a firearm. As a result, Myers was justified in getting out of his car to approach defendant to request information from him. Then, when defendant broke into a run and removed what appeared to be a handgun from his waistband, Myers had reasonable suspicion to chase and detain him. See People v. Coleman, 125 AD3d 879 (2d Dept.2015) ; People v. Rogers, 92 AD3d 903 (2d Dept.2012) ; People v. Stephenson, 89 AD3d 872 (2d Dept.2011).
Even if, in this quickly-developing sequence of events, Myers began his pursuit seconds before he saw defendant remove a gun from his waistband, his conduct was still reasonable. Here, unlike in Clermont, the People “adduced testimony showing ... that the defendant's conduct in adjusting his waistband was indicative of gun possession.” People v. Clermont, 133 AD3d at 614. Myers believed—based on his extensive training and experience and involvement in numerous arrests for firearms offenses—that when defendant reached underneath his sweatshirt onto his belt line and appeared to grab something with his hand and move it toward the front of his waistband, defendant was moving a firearm. Such testimony was notably absent in Clermont. People v. Clermont, 133 AD3d at 615. While Myers candidly did not testify to seeing the outline of a firearm handle, as in Fletcher, his observations-based on his training and experience-were every bit as revealing and not readily susceptible to an innocent explanation.
Defendant Abandoned his Jacket.
Because defendant's abandonment of his jacket was not precipitated by illegal police conduct, it and its contents should not be suppressed. See People v. Coleman, 125 AD3d at 880. But even if Myers's initial pursuit of defendant was unlawful, defendant's jacket and its contents would be admissible at trial because defendant made a calculated and voluntary decision to abandon it after he fled from the police. When a defendant discards property spontaneously as a reaction to police conduct, he retains standing to challenge any search or seizure of the property and to seek its suppression. See People v. Ramirez–Portoreal, 88 N.Y.2d 99 (1996). But where, as here, a defendant intentionally, purposefully and deliberately divests himself of property to avoid a search—even following some unlawful police conduct—he loses any expectation of privacy in the property and the right to seek its suppression. See People v. Boodle, 47 N.Y.2d 398 (1979).
In this case, defendant's act of discarding his jacket was “not a spontaneous reaction to a sudden and unexpected confrontation with the police,” but was rather “an independent act involving a calculated risk.” See People v. Boodle, 47 N.Y.2d 398, 404 (1979) ; People v. Stewart, 174 A.D.2d 769 (2d Dept.1991) ; People v. Martin, 140 A.D.2d 632 (2d Dept.1988) ; People v. Perez, 123 A.D.2d 791 (2d Dept.1986). Defendant did not discard his jacket immediately upon being pursued by Myers. Instead, he waited until he had scaled two separate fences and was out of Myers's sight before leaving his jacket on a driveway in an attempt not only to separate himself from the drugs in the pocket of the jacket, but also to lessen the chances of his being identified and apprehended by other officers who would be looking for a suspect wearing a purple jacket. Myers readily acknowledged he could not easily scale the stockade fence. It took him “some time” to climb over it. And when he did, defendant was gone. Defendant could have easily gotten away with the jacket and its contents, but he made a calculated decision to discard the jacket to avoid later detection. In doing so, he lost any expectation of privacy he had in the jacket.
Defendant's Statement to the Police Must Be Suppressed.
Defendant, who had been placed under arrest and taken to the precinct, was unquestionably in custody when Myers asked him if the phone Myers had found in the jacket belonged to him. Therefore, Myers was required to give defendant Miranda warnings prior to questioning him (see Miranda v. Arizona, 384 U.S. 436 [1966] ), unless some exception to the Miranda rule applied. In order for routine booking questions, or pedigree questions, to fall outside the parameters of Miranda, they must be reasonably related to the administrative concerns of the police. People v. Rodney, 85 N.Y.2d 289, 292 (1995). “[T]he People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case.” Id.; see also People v. Flowers, 59 AD3d 1141, 1143 (4th Dept.2009).
Here, the People failed to meet their burden of establishing that the questions that were not preceded by Miranda were routine and not designed to elicit an incriminating response. Myers testified that he first asked defendant if he wished to make any phone calls, and then asked him if the phone recovered from the jacket was his. That minimal testimony was insufficient to establish that the question regarding whether or not the phone belonged to defendant—which led to a response that tied defendant to ownership of the jacket in which cocaine was recovered—was routine, whether it was part of the pedigree process, and whether it was necessary to advance the administrative purpose of allowing defendant to make phone calls, or whether other telephones were readily available for that purpose. As a result, defendant's statement must be suppressed.