Opinion
No. 1491/2011.
2012-02-23
PEOPLE of the State of New York v. Hassan DURHAM.
Emily S. Kane, Esq., The Legal Aid Society, for the Defendant. Lindsay Zuflacht, Esq., Asst. District Attorney, for the People.
Emily S. Kane, Esq., The Legal Aid Society, for the Defendant. Lindsay Zuflacht, Esq., Asst. District Attorney, for the People.
GUY J. MANGANO JR., J.
The defendant is charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) and Criminal Possession of the Weapon in the Fourth Degree (Penal Law § 265.01). A Dunaway/Mapp/Huntley hearing was ordered and held. The People called one witness: New York City Police Officer Michael Burbridge.
FINDINGS OF FACT
This Court finds the People's witness to be credible.
In the early morning hours of February 19, 2011, Police Officer Michael Burbridge and his partner, Officer Grandstaff, were on anti-crime patrol in an unmarked police vehicle within the confines of the 79th Precinct. At approximately 1:15 am, the duo observed a large group of youths exiting a party near the corner of Atlantic and Franklin Avenues, Brooklyn. The officers were patrolling this particular area after receiving intelligence earlier of some possible teenaged gang activity. One of the youths had raised their attention when Officer Burbridge overheard him speaking with others, asking them, “where is it, yo, where is it,” as he contemporaneously looked on the ground and under vehicles parked in the area. The individual repeated this behavior and stopped only after the officers exited from their vehicle. No further action was taken against this individual at that time.
The officers resumed their patrol, and at approximately 1:58 am, the unmarked vehicle was in the southbound lane of Franklin Avenue near the corner of Breevort Place, Brooklyn, when the officers again observed the same individual who had apparently been searching for something on the ground shortly before. During this second encounter, the individual began to yell toward another person down the street, “the police, the police.” Officer Grandstaff exited the vehicle to approach this individual, while Officer Burbridge remained in the driver's side training his eyes on the other person, defendant herein, who was approximately 70 feet away. In apparent reaction to being warned of police presence, defendant jumped over a fence which invited Officer Burbridge to drive the vehicle closer to investigate. Clandestinely positioning the police vehicle in a well lit area between two parked cars, approximately twenty feet from where defendant was standing, Officer Burbridge observed him remove a “black L-shaped object that you grip on the side and it comes down like an L, upside-down L,” from his waistband and place it into a row of garbage cans.
Believing the object to be a handgun, Officer Burbridge immediately exited his vehicle and informed defendant to “come here, police, come here, police.” The officer grabbed defendant and restrained him while at the same time using a point-to-point radio to request assistance. Within one minute, Police Officer Brennan arrived at the scene and was instructed by Officer Burbridge to recover the firearm from the garbage cans. Officer Brennan recovered a loaded black 9mm Smith and Wesson handgun, and defendant was placed under arrest.
On the way to the 79th Precinct, defendant stated to Officer Burbridge, “can you just take me home or call my mom. I live right up the block.”
Defendant challenges the constitutionality of the warrantless arrest as well as the admissibility of the recovered firearm and statement made on the way to the precinct.
CONCLUSIONS OF LAW
DUNAWAY and MAPP ISSUES
In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in People v. De Bour (40 N.Y.2d 210). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality ( see id.; see also People v. Hollman, 79 N.Y.2d 181;People v. Wells, 226 A.D.2d 406). The next level of intrusion, the common law right to inquire, is allowable when the police have a “founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v. De Bour, 40 N.Y.2d 210,supra at 223). Third, a police officer may pursue, stop and detain a person when a reasonable suspicion exists that such person has committed, is committing or is about to commit a crime ( see id.; see also CPL 140.50; People v. Martinez, 80 N.Y.2d 444;People v. Hollman, 79 N.Y.2d 181,supra; People v. Leung, 68 N.Y.2d 734). Finally, the fourth level of intrusion permits the arrest and custody of a person where the police have probable cause to believe that the person has committed a crime ( see People v. De Bour, 40 N.Y.2d 210,supra; People v. Hollman, 79 N.Y.2d 181,supra; see also CPL 140.10; People v. Brown, 256 A.D.2d 414).
The record establishes that the police were patrolling an area of Brooklyn for which they had received information of teenaged gang activity occurring at a large party. During the early morning hours of the day, the police observed a large group of youths leaving a party and their attention was ultimately drawn to two individuals: an unapprehended male who was sounding an alert of police presence, and defendant, who had jumped over a fence as the alert was being broadcast in his direction. Based upon the circumstances presented, the officer had an articulable basis for driving the police vehicle toward the defendant in a clandestine and minimally intrusive manner to investigate and inquire of the defendant as to his activities ( see People v. Wells, 226 A.D.2d 406,supra; see also People v. Salaman, 71 N.Y.2d 869;People v. De Bour, 40 N.Y.2d 210,supra; People v. Decayette, 217 A.D.2d 557,appeal denied86 N.Y.2d 841;People v. Jackson, 158 A.D.2d 545,appeal denied76 N.Y.2d 737;People v. Perry, 133 A.D.2d 380,aff'd71 N.Y.2d 871). Officer Burbridge never exited the police vehicle, alerted defendant to his presence or acted in any manner which would or could have caused defendant to react to any unlawful police conduct ( see People v. Martinez, 207 A.D.2d 807 [pursuit of defendant was silent and unobtrusive and it was probable that the defendant did not know that he was being observed by the police when he discarded the weapon] ).
Defendant was physically stopped and detained only after the officer observed him remove what appeared to be a handgun from his waistband and place it into a garbage can. “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 N.Y.2d 267, 271;People v. Rivera, 286 A.D.2d 235). Moreover, the “bulge or grasp at the waist is telltale of a weapon,' and upon the officer's observation of “defendant's grasping motion, the officer had reasonable suspicion of criminal activity, which justified the [stop]” (People v. Rivera, 286 A.D.2d 235,supra at 235–236;People v. Rodriguez, 71 AD3d 436). Accordingly, the police had at least a reasonable suspicion to detain defendant while a fellow officer retrieved the abandoned firearm ( see People v. Gayle, 187 A.D.2d 450). The encounter ripened into probable cause to arrest once the police recovered the abandoned weapon from the area where defendant had dropped it ( see People v. Butler, 293 A.D.2d 686,lv denied98 N.Y.2d 695;People v. Hills, 295 A.D.2d 365,lv denied98 N.Y.2d 730;People v. Santiago, 206 A.D.2d 492,lv denied84 N.Y.2d 872;People v. Yizar, 196 A.D.2d 517,lv denied82 N.Y.2d 809;People v. Wilson, 147 A.D.2d 602).
As for the admissibility of the weapon retrieved from a garbage can, since defendant's purposeful abandonment of the property was not precipitated by any illegal police conduct, he lacks standing to challenge its recovery ( see People v. Martinez, 80 N.Y.2d 444,supra; People v. Leung, 68 N.Y.2d 734,supra; see also People v. Mora, 259 A.D.2d 562;People v. Ramirez–Portoreal, 88 N.Y.2d 99). In any event, the weapon was properly searched for and recovered based upon the police officer's observations and there was no police conduct which could be construed in any manner as an unreasonable governmental intrusion ( see People v. Morales, 197 A.D.2d 710,appeal denied82 N.Y.2d 900People v. Goodwine, 177 A.D.2d 708,appeal denied79 N.Y.2d 920;see also People v. Meredith, 201 A.D.2d 674,appeal denied83 N.Y.2d 1005).
Thus, since the police were justified in approaching, stopping and subsequently arresting defendant, the weapon recovered will be admissible at trial.
HUNTLEY ISSUE
As for the statement made by defendant to Officer Burbridge while on the way to the 79th Police Precinct, the record is clear that the statement was voluntary and spontaneous and was not the product of police interrogation or its functional equivalent ( see People v. Rivers, 56 N.Y.2d 476;see also People v. Davis, 261 A.D.2d 411,lv denied93 N.Y.2d 1002;People v. Green, 258 A.D.2d 531,lv denied93 N.Y.2d 971;People v. Schreiber, 250 A.D.2d 786,lv denied92 N.Y.2d 905).
Accordingly, the statement will not be suppressed.
This shall constitute the Decision and Order of the Court.