Opinion
2014/0299
11-19-2014
The People of the State of New York, Plaintiff, v. Jorge D. DeJesus, Jr., Defendant.
For the People: Sandra Doorley, Esq. Monroe County District Attorney Matthew McGrath, Esq. 47 South Fitzhugh Street, Suite 832 Rochester, New York 14614 For Defendant: Paul D. MacAulay, Esq. 290 Linden Oaks - Lower Level Rochester, New York 14625
For the People: Sandra Doorley, Esq. Monroe County District Attorney Matthew McGrath, Esq. 47 South Fitzhugh Street, Suite 832 Rochester, New York 14614 For Defendant: Paul D. MacAulay, Esq. 290 Linden Oaks - Lower Level Rochester, New York 14625 F. Dana Winslow, J.
Defendant is charged by Indictment Number 2014/0299 with Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law §265.03, Subdivision 3. Defendant has moved to suppress tangible evidence and statements, claiming he was unlawfully arrested and that the search warrant issued in connection with his arrest was defective. Defendant additionally claims that all statements were involuntarily obtained in violation of his constitutional rights. The People oppose suppression. The Court conducted an in camera review of the search warrant and accompanying application and determined that the search of the vehicle in which the gun was located was properly supported by probable cause. With respect to the search of the cellular phone, however, the warrant application contained insufficient factual allegations to establish reasonable cause to believe certain contraband would be found therein and any evidence stemming from the search of the phone is suppressed. The Court conducted a combined probable cause/Huntley hearing on August 19, 2014, and the People presented the testimony of four witnesses from the Rochester Police Department. Defendant did not call any witnesses or testify on his own behalf. The parties submitted written summations.
Having had the opportunity to observe the demeanor and evaluate the credibility of each of the testifying witnesses and having considered all of the proof presented and the arguments raised by the respective parties, the Court finds as follows:
FINDINGS OF FACT
On the afternoon of February 14, 2014, Officer Ryan Hartley was conducting covert surveillance of the defendant, Jorge DeJesus. Police believed that Defendant was the intended target of a recent homicide in the City of Rochester and that he may be a witness in the case. Officer Hartley had been advised by Investigator Brennan of the Major Crimes Unit that a confidential informant saw the defendant at a funeral home on St. Paul Boulevard and that he may be carrying a weapon for protection in light of the recent violence. Officer Hartley watched the funeral home on St. Paul Boulevard from a nearby lot. He saw Defendant exit the funeral parlor and get into a silver, four-door Dodge Stratus. Defendant joined the procession as the vehicles were leaving the funeral home and proceeded northbound on St. Paul Boulevard in the funeral procession. As Defendant approached Avenue A, Officer Hartley observed the defendant pull out of the procession and turn right without a turn signal. Upon observing the traffic violation, Officer Hartley pulled out onto St. Paul Boulevard and began following Defendant as he traveled eastbound on Avenue A. The officer, dressed in plain clothes and operating an unmarked vehicle, was not equipped to initiate a traffic stop himself so he continued to follow Defendant and radioed for assistance. Officer Hartley communicated his observations to Officer Brad Pike and requested a stop of the silver Dodge Stratus with license plate EUR-2096. Officer Hartley told Officer Pike that the sole occupant of the Dodge was a male Hispanic, wearing dark blue jeans, a gray hooded sweatshirt and a camo hat. Officer Hartley further advised that the driver had commit a traffic offense and may be in possession of a weapon.
Defendant stopped at the curb on the south side of Farbridge Street, near number 59. Officer Hartley watched from a distance of about three or four houses away. When he saw Officer Pike pull up behind Defendant's vehicle, Officer Hartley left. Officer Pike activated his emergency lights and Officer Luciano arrived shortly thereafter and parked behind Officer Pike's patrol vehicle. As the two officers began to approach the Dodge, Defendant appeared to be emerging from the vehicle. Officer Pike could see both of his feet on the pavement beside the driver's door and Defendant was leaning forward, as if to exit. Officer Pike observed that the defendant was wearing dark blue jeans and a gray sweatshirt, and that he was holding something in his hands. Officer Pike ran up to the driver's side of the vehicle and observed that Defendant had turned away and appeared to be reaching back into the vehicle. Fearing that he might be reaching for a gun, Officer Pike immediately asked the defendant to exit the vehicle. Defendant hesitated briefly before complying with the officer's directive. As he exited, Officer Pike observed that Defendant was holding keys, a cell phone and some miscellaneous papers in his hands. His muscles appeared to be tensing-up and Defendant was looking around to his left and to his right, as if he might run. Officer Pike instructed the defendant to turn around and place his hands behind his back so that he could pat-frisk Defendant for weapons. Defendant asked why he was stopped and Officer Pike did not respond. Instead, he asked Defendant if he had anything sharp on his person that might poke or injure the officer. Defendant denied having anything on his person and Officer Pike attempted to frisk Defendant's person. As he began to perform the pat-down, Defendant tensed-up and pulled his arms away. Officer Pike sensed that the situation was escalating and thought Defendant was preparing to go for a gun, fight, or run. At that point, Officer Pike determined he needed to handcuff Defendant and move him away from the Dodge in order to safely pat-frisk him for weapons.
Before initiating his second attempt to pat-frisk the defendant, Officer Pike again asked if Defendant had anything sharp on his person that might hurt or poke the officer. Defendant said, "No. I have felonies. There's something in the car." Defendant then said there was a gun in the center console. Officer Pike asked no other questions of Defendant and did not conduct a search of the vehicle. The Dodge was towed to the Public Safety Building while police requested and obtained a search warrant. Defendant was ticketed for the traffic offense and transported to an interview room at the Public Safety Building, where he was interviewed by homicide investigators.
Officer Cortney Carbonel and Investigator Thomas Cassidy executed a search warrant for the Dodge Stratus on the afternoon of February 14, 2014. Officer Carbonel photographed the vehicle in the technician's cage and searched the interior of the vehicle. A Smith and Wesson .38 caliber handgun was discovered in the front passenger compartment, between the center console and passenger seat. The handgun was wrapped in a black sock and loaded with five rounds of ammunition.
Investigator Katherine Farina and her partner, Seth Carr, met with the defendant at about 2:42 pm that afternoon on the fourth floor of the Public Safety Building. Neither investigator was armed during the interview with Defendant and there were no threats or promises made to coerce Defendant to waive his rights. Prior to speaking to the defendant about the gun, Investigator Carr advised Defendant of his Miranda warnings from a pre-printed rights card (People's Exhibit 1). Defendant said he understood and agreed to speak to the investigators. Defendant said he was 33 years-old and that he completed the tenth grade at Charlotte High School. Defendant admitted that he had the .38 caliber handgun and said it was for protection. After speaking to the investigators for approximately 40 minutes, Defendant asked for an attorney. The investigators asked no further questions about the weapon or Defendant's possession thereof. CONCLUSIONS OF LAW
The Search Warrant
In determining whether a search warrant is valid, the reviewing court must examine the warrant application and the search warrant itself to ascertain whether the information known to the issuing magistrate was sufficient to establish probable cause (see Franks v. Delaware, 438 U.S. 154 [1978]; People v. Hendricks, 25 NY2d 129 [1969]; People v. Hanlon, 36 NY2d 549 [1975]; People v. Glen, 30 NY2d 252, 256 [1972]). Each warrant must be judged on the particular facts and circumstances articulated to the magistrate at the time of issuance (People v. Nieves, 36 NY2d 396, 402 [1975]). A presumption of validity attaches to the warrant and the suppression court's task is limited to determining whether the issuing magistrate could reasonably have concluded that probable cause existed (People v. Castillo, 80 NY2d 578, 585 [1992]). Search warrant applications must include allegations of fact sufficient to establish reasonable cause to believe that certain contraband will be found in a described place (CPL § 690.35[3]). The factual allegations may be based upon an applicant's own personal knowledge or upon "information and belief", provided the applicant states the source of the information and grounds for such belief (CPL § 690.35[3][c]; see also People v. Fromen, 125 AD2d 987 [4th Dept 1986]). Where probable cause is based upon unsworn hearsay, the warrant application must also set forth sufficient facts to demonstrate reliability and basis of knowledge (see People v. Hanlon, 36 NY2d 549, 557 [1975]; People v. Hetrick, 80 NY2d 344, 348 [1992]). An affidavit by one police officer based upon the observations of a fellow officer engaged in a common investigation provides a reliable basis for issuance of a warrant (see People v. Robinson, 8 AD3d 131 [1st Dept 2004]; People v. Petralia, 62 NY2d 47, 52 [1984]; People v. Londono, 148 AD2d 753 [2nd Dept 1989]).
The Court has reviewed the warrant application and the search warrant issued in Defendant's case. The search warrant properly contains the name of the court and the name of the applicant, as well as a description of the place to be searched and items to be seized. The warrant was issued by a neutral and detached magistrate, and the applicant's affidavit summarizes his background in law enforcement and provides facts in support of issuance. The Court has determined that the issuing magistrate had sufficient information upon which to reasonably determine that probable cause existed, exclusive of any unsworn hearsay allegations.
Ingle/Mapp
Upon a motion to suppress evidence, the People bear the initial burden to establish the legality of police action (see People v. Baldwin, 25 NY2d 66 [1969]; People v. Malinsky, 15 NY2d 86 [1965]). The burden then shifts to the defendant to establish that the police acted unlawfully in violation of the defendant's constitutional rights (People v. Berrios, 28 NY2d 361 [1971]). In evaluating the propriety of police conduct, the suppression court must determine whether the initial encounter was justified and whether any consequent intrusion was reasonably responsive to the circumstances presented (see People v. DeBour, 40 NY2d 210 [1976]; People v. Hollman, 79 NY2d 181 [1992]; People v. Cantor, 36 NY2d 106, 111 [1975]). The totality of the circumstances dictates the appropriate level of police intrusion (People v. Giles, 223 AD2d 39, 43 [1st Dept 1996] lv denied 89 NY2d 864 [1996]; People v. Martinez, 80 NY2d 444 [1992]).
The stop of a motor vehicle is authorized when an officer observes or reasonably suspects a violation of the Vehicle and Traffic Law (see People v. Ingle, 36 NY2d 413 [1975]). "A police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a stop" (People v. Robinson, 97 NY2d 341, 354 [2001]; see also People v. Baker, 87 AD3d 1313 [4th Dept 2011], lv denied 18 NY3d 857 [2011]). As explained by the Court of Appeals in Robinson, "In making [a] determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant. . . A police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a stop" (Id. at 349, 354).
Proof presented at Defendant's suppression hearing established that the traffic stop was lawful and proper. According to the testimony of Officers Hartley and Pike, which the Court found credible, Officer Hartley observed a turn signal violation and requested Officer Pike's assistance to conduct a traffic stop. The articulated credible facts provided reasonable cause to believe a violation of the Vehicle and Traffic Law had been committed and the stop was therefore justified on that basis.
Furthermore, an officer conducting a traffic stop for a suspected violation of the Vehicle and Traffic Law may lawfully order occupants out of the vehicle and pat-frisk the occupants for weapons where the officer reasonably suspects an individual might be armed or pose a threat to the officer's safety (see People v. Batista, 88 NY2d 650, 654 [1996] citing People v. Rivera, 14 NY2d 441, 446 [1964]; People v. Henderson, 26 AD3d 444 [2d Dept 2006]). Notwithstanding the fact that Officer Pike had been advised by Officer Hartley that Defendant may be in possession of a weapon prior to conducting the traffic stop, Officer Pike's own observations of Defendant's behavior, both inside and outside the vehicle, caused him to reasonably suspect that Defendant posed a danger to his safety. The Court has considered Defendant's arguments to the contrary and his reliance upon People v. Garcia (20 NY3d 317 [2012]) and People v. Wideman (121 AD3d 1514 [4th Dept 2014]) is misplaced. The police-citizen encounters in the cases upon which the defendant relies, while seemingly similar at first glance, differ quite significantly from the circumstances here. Simply stated, Defendant's is not a case in which police approached a vehicle and, during the course of a routine traffic stop, gratuitously asked the driver if he had any weapons or drugs in the vehicle and then ordered the occupants out and conducted a search that revealed the presence of unlawful contraband.
After pulling up behind Defendant's parked vehicle on Farbridge Street and initiating his emergency lights, Officer Pike observed that Defendant's feet were on the pavement beside the driver's door and he was leaning forward as if to exit the vehicle. Defendant was holding something in his hands and, as Officer Pike began to approach on foot, Defendant turned his body back into the vehicle and appeared to be reaching back into the interior. Next, when Officer Pike directed Defendant to exit the vehicle, he hesitated to comply with the officer's directive. When Defendant did step out, Officer Pike observed his muscles tensing-up, which the officer repeatedly described as "posturing", and the defendant was looking around to his left and his right, as if he was getting ready to run. Defendant's furtive movements and suspicious behavior caused the officer to reasonably suspect Defendant possessed a weapon and posed a threat to his safety. Therefore, a pat-frisk of Defendant's person was a reasonable and appropriate response to the circumstances presented (see People v. Carter, 109 AD3d 1188, 1189 [4th Dept 2013]; People v. Fagan, 98 NY3d 1270, 1271 [4th Dept 2012]). Then, when Defendant tensed-up and pulled away during the officer's first attempt to conduct a pat-down for weapons, the use of handcuffs was warranted and necessary to ensure that the officer's task could be accomplished safely (see People v. Allen, 73 NY2d 378, 379 [1989]). Officers may take reasonable measures to protect themselves and need not "await the glint of steel" before doing so (People v. Benjamin, 51 NY2d 267, 271 [1980]; see also People v. Johnston, 103 AD3d 1202, 1203 [4th Dept 2013]; People v. Allen, at 380).
Defendant's statement that there was a gun in the center console, which was not responsive to the officer's inquiry about whether Defendant had anything sharp on his person that could injury the officer during the pat-frisk, provided probable cause to believe Defendant had a gun in the vehicle. The subsequent search of the vehicle pursuant to the issuance of a search warrant, which revealed a loaded .38 caliber handgun, provided probable cause for Defendant's arrest (CPL § 140.25[1]).
Huntley
For a defendant's statements to be admissible at trial, the People must establish voluntariness beyond a reasonable doubt (see People v. Huntley, 15 NY2d 72 [1965]; People v. Valerius, 31 NY2d 51 [1972]). The issue is: whether, under the totality of the circumstances, the defendant's statements were obtained in violation of his constitutional right against self-incrimination or his constitutional right to counsel. Statements resulting from custodial interrogation are admissible only upon a showing of compliance with the procedural safeguards provided by Miranda v. Arizona. "Miranda requires that at the time a person is taken into custody or otherwise deprived of his freedom, he must be advised of his constitutional rights" (People v. Yukl, 25 NY2d 585, 588, cert denied 400 US 851 [1970]; see also People v. Harris, 48 NY2d 208, 215 [1979]).
With respect to the statements Defendant made to Officer Pike on Farbridge Street, those statements were made during a stop for a violation of the Vehicle and Traffic Law. While arguably not spontaneous in nature because the officer asked Defendant whether he had any sharp objects on his person prior to conducting a pat-frisk, Defendant's statements were certainly not responsive. The officer's question was for the purpose of insuring his own safety and was not designed to elicit an incriminating statement from the defendant (see People v. Hoffman, 283 AD2d 928, 929 [4th Dept 2001]; People v. Burgos, 255 AD2d 199 [1st Dept 1998] People v. Jenkins, 208 AD2d 459, 460 [1st Dept 1994]; see also People Herring, 179 AD2d 549 [1st Dept 1992]; People v. Ingram, 177 AD2d 650 [2nd Dept 1991]). Officer Pike never asked Defendant about his criminal history or if he had any weapons inside the vehicle. Because Defendant's statements were not the product of police interrogation or its functional equivalent, Miranda warnings were not required (see People v. Oglesby, 15 AD3d 888, 889 [4th Dept 2005]; People v. Parker, 299 AD2d 859 [4th Dept 2002]; see also People v. Huffman, 41 NY2d 29 [1976]).
The proof presented further established that Defendant's statements to the investigators at the Public Safety Building were obtained with due regard for his constitutional rights and were not the product of coercion, pressure, promises or improper inducement by police. Investigator Carr advised Defendant of his Miranda warnings word-for-word from a pre-printed rights card admitted as People's Exhibit 1. Defendant indicated that he understood his rights and wished to waive them and speak to the investigators. No force, coercion or threats were employed to compel the defendant to waive his rights or make a statement, and there was no evidence of any improper conduct, undue pressure or promises made to Defendant. Upon the totality of the evidence presented, the Court finds the People have sustained their burden.
The defendant's motion to suppress evidence is denied in its entirety. This shall constitute the decision and order of the Court.
Dated this 19th day of November, 2014 at Rochester, New York.