Opinion
Indictment No. 70185-23
08-02-2023
The People of the State of New York v. Terrence McBride, Defendant.
ADA Andrew Tripodi Nassau County District Attorney's Office Christopher Graziano, Esq. Attorney for Defendant
Unpublished Opinion
ADA Andrew Tripodi Nassau County District Attorney's Office Christopher Graziano, Esq. Attorney for Defendant
Robert A. Schwartz Acting Supreme Court Justice
Defendant was indicted for criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, criminal possession of a firearm, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, three counts of criminal possession of a controlled substance in the seventh degree, criminally using drug paraphernalia in the second degree, and aggravated unlicensed operation of a motor vehicle in the second degree. The charges stem from an incident on October 26, 2022, when police officers approached defendant sitting in a parked car and subsequently recovered a loaded gun in the car and drugs and currency from defendant's person. The People also allege that defendant was operating a motor vehicle while knowing or having reason to know that his license or privilege to operate a motor vehicle was suspended or revoked.
On February 15, 2023, the parties stipulated to a Huntley/Dunaway/Mapp suppression hearing. That hearing was held on May 8, 2023, and June 7, 2023. The People called Police Officers Robert Psomas, Joseph Mueller, and Michael Sierzant, and Detective Ryan Coyle, to testify. The People's evidence included video recordings from the officers' body cameras of their interactions with defendant. Defendant presented no evidence. The parties presented oral arguments on June 16, 2023.
"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance." People v Hernandez, 40 A.D.3d 777, 778 (2d Dept 2007); see People v Berrios, 28 N.Y.2d 361, 367 (1971). After reviewing the evidence and considering the parties' arguments, the court finds the testimony of the People's witnesses to be generally credible. However, the People failed to establish the legality of the officers' initial encounter with defendant. Accordingly, for the reasons set forth below, defendant's motion to suppress the drugs, the gun, the currency, and defendant's statements, is granted.
Findings of Fact
On October 26, 2022, Officers Psomas and Mueller were on patrol within the Fifth Precinct of the Nassau County Police Department. They were specifically assigned to patrol for "quality of life offenses" - criminal activity such as drug transactions and gang activity. They were in plainclothes, in an unmarked police vehicle. At approximately 12:35 a.m., they were patrolling the area of Hendrickson Park in Elmont. Psomas was driving and Mueller was in the front passenger seat. Psomas testified that he was familiar with Hendrickson Park, that drug and gang activity were common there, and that he had participated in numerous criminal investigations relating to narcotics, gang activity, and violence in that area. At that time, it was dark outside, and the park was closed.
As Psomas and Mueller drove south on Roquette Avenue, a one-way street that borders Hendrickson Park, they saw a white Nissan Rogue parked on the street. Both officers testified that the Rogue was parked further from the curb than the other vehicles parked on the street, but neither officer testified to the distance between the curb and the Rogue. As he drove past, Psomas saw that an interior light in the Rogue was on, the driver's side window was open, and he saw a person in the driver's seat looking towards his lap and "manipulating an object." Mueller testified that the engine was running. Psomas could not see the driver's hands and did not know what object, if any, he appeared to be manipulating. Psomas and Mueller later identified defendant as the driver of the Rogue. Mueller also testified that there was a clear cover on one of the Rogue's license plates.
Based on those observations and his familiarity with the criminal activity in that area, Psomas decided to investigate further. He drove around the block, stopped behind the Rogue, and activated the red emergency lights of the unmarked police vehicle. Psomas and Mueller testified that they were effecting a "stop" of the Rogue. Psomas exited the vehicle and walked towards the driver side of the Rogue while Mueller walked towards the passenger side. The officers used their flashlights to see inside the Rogue as they walked towards it. As he approached, Psomas saw defendant lift his legs from his seat, arch his back, and put something in the back of his pants. At that time, Psomas did not know what defendant had put in his pants, but testified that based on his training and experience he believed it could have been drugs or a weapon. Mueller believed it to be a plastic bag and ordered defendant to stop moving and to place his hands on the steering wheel.
When Psomas reached the open driver's side window of the Rogue, he noticed defendant was nervous, shaking, and breathing heavily. He asked defendant to turn off the vehicle and keep his hands on the steering wheel. Mueller reached into the vehicle and removed the keys to prevent defendant from leaving. Psomas told defendant that he saw him put something in his pants and asked him what it was. Defendant responded that it was drugs. Psomas opened the driver's side door, told defendant to lean forward, and handcuffed him. Psomas removed defendant from the vehicle. Mueller searched defendant's pants and pulled a clear plastic bag containing what he believed to be narcotics from inside the back of defendant's underwear. Mueller also recovered $900 in United States currency from defendant's front left pocket.
Police Officers Michael Sierzant and Anthony Roselli also assisted Psomas and Mueller with defendant's arrest. Sierzant testified that he and Roselli also were patrolling that area for "quality of life" offenses and that he also knew drug and gang activity to be common in the area of Hendrickson Park. Sierzant had been watching the Rogue before Psomas and Mueller pulled up behind it. From a nearby gas station, he noticed that the Rogue was parked on the street next to the park with its headlights on but could not see inside it. For approximately 10 minutes he watched the Rogue and did not observe any apparent criminal activity. When Sierzant saw Psomas and Mueller activate their red emergency lights he and Roselli went to assist them. Defendant was already out of the Rogue and in handcuffs when Sierzant and Roselli arrived. Sierzant noticed that the Rogue was further from the curb than other vehicles parked on that street. He estimated that the vehicle was parked more than twelve inches from the curb but did not measure the distance.
After defendant was removed from his vehicle, Psomas asked him further questions. Sierzant was present for their conversation. Psomas asked defendant if the vehicle was his and defendant responded that it belonged to a friend. He asked defendant his name and date of birth, which defendant provided. Psomas ran a computer check using defendant's pedigree information and learned that defendant's license was suspended and that he had outstanding arrest warrants. Psomas asked defendant to confirm his pedigree information and he did. After Psomas told defendant about his outstanding warrants, defendant asked what they were for, and Psomas responded that they pertained to a parole violation and a charge of promoting prison contraband. Defendant explained that he had been charged because another prisoner had dropped contraband on the floor near defendant and did not take responsibility for it. Defendant related that he had recently moved from Hempstead to Queens, and asked if he could smoke a cigarette. Psomas retrieved cigarettes and a lighter from the Rogue, lit a cigarette, and gave it to defendant. Psomas told defendant that it was dangerous for defendant to shove something into his pants when police officers were approaching his vehicle because they could think he had a weapon. Defendant responded that he knew it was dangerous and that was why he froze when the officers approached him. The officers did not make any threats or promises to defendant or otherwise use any force or coercion to prompt his responses.
Mueller searched the Rogue and found on the back seat a backpack containing a loaded black handgun and clear plastic bags commonly used for packaging and selling narcotics. At approximately 1:00 a.m., the officers transported defendant to the Fifth Squad for arrest processing. En route, defendant asked if he was going to get the Rogue back because it belonged to his girlfriend and she needed the keys in the vehicle for her job. Defendant asked that question spontaneously and not in response to any statements or questions by the officers.
Later that morning, Detective Coyle had a further conversation with defendant in an interview room in the Fifth Squad. Detective Chris DiGregorio was also present for that conversation. Coyle advised defendant of his Miranda rights using a pre-printed card and defendant indicated he understood them. He then asked defendant if he would answer questions and defendant said that he would. Coyle then had a conversation with defendant about, among other things, the drugs and the handgun recovered during his arrest. Coyle then memorialized their conversation into a written statement which defendant reviewed and signed. The detectives did not make any threats or promises to defendant or otherwise use any force or coercion to prompt his answers. Defendant did not invoke his right to remain silent or ask to speak to an attorney during that conversation.
Conclusions of Law
The People Failed to Establish a Sufficient Justification for the Police Officers' Initial Encounter with Defendant
When police acting in their criminal law enforcement capacity initiate an encounter with a private citizen, the legality of the encounter is assessed using the four-tiered analytical framework established in People v De Bour, 40 N.Y.2d 210 (1976). The first level, a request for information, is the least intrusive, but must be supported by an "objective, credible reason, not necessarily indicative of criminality." People v Hollman, 79 N.Y.2d 181, 185 (1992). The second level, a common-law inquiry, which allows for more pointed questioning, requires "a founded suspicion that criminality is afoot." Id.; see De Bour, 40 N.Y.2d at 223 (the common-law right to inquire is "activated by a founded suspicion that criminal activity is afoot," and entitles a police officer "to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure."). The third level is a stop based on reasonable suspicion in accordance with section 145.50(1) of the Criminal Procedure Law. De Bour, 40 N.Y.2d at 227; see People v Johnson, - N.Y.3d -, 2023 NY Slip Op 02734, *2 (2023). To stop a pedestrian or the occupant of a moving vehicle, the police must have reasonable suspicion that the person has or is about to commit a crime, or probable cause to believe they committed a traffic infraction. See People v Hinshaw, 35 N.Y.3d 427 (2020); People v Spencer, 84 N.Y.2d 749 (1995). The fourth level is an arrest based on probable cause. De Bour, 40 N.Y.2d at 227.
These encounters can be "dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize... additional action as the scenario unfolds." De Bour, 40 N.Y.2d at 225. However, a defendant's subsequent conduct "cannot validate an encounter that was not justified at its inception." People v Moore, 6 N.Y.3d 496, 498 (2006).
While police only need an objective credible reason to approach and request information from a person in a parked car, (see People v Ocasio, 85 N.Y.2d 982, 984 [1995]; Spencer, 84 N.Y.2d at 753; People v Harrison, 57 N.Y.2d 470, 475-476 [1982]) they may not forcibly detain or constructively stop an occupant without reasonable suspicion. Harrison, 57 N.Y.2d at 475-476.
The reasonable suspicion to justify a level three encounter has been defined as "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand." People v Martinez, 80 N.Y.2d 444, 448 (1992). A vague or unparticularized hunch does not suffice. See People v Sobotker, 43 N.Y.2d 559, 564 (1978). In addition, "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand." De Bour, 40 N.Y.2d at 216; see Johnson, - N.Y.3d at *2 (police not justified in conducting a level three stop and frisk after observing the defendant move from driver's seat to passenger seat of his parked car, pull up his pants, and appear nervous); People v Burnett, 126 A.D.3d 1491, 1494 (4th Dept 2015) (the mere presence of defendant's hand in his pants pocket was innocuous and susceptible to an innocent interpretation); People v Layou, 71 A.D.3d 1382, 1383-1384 (4th Dept 2010) (the defendant's mere presence in a vehicle at night in a parking lot in the general vicinity of a burglary did not provide the police with reasonable suspicion); People v Lopez, 75 A.D.3d 610, 612 (2d Dept 2010) (defendant's presence inside a parked vehicle near an open business was innocuous and did not justify stop even though car interior light was on and defendant was looking down). Here, defendant's presence in a parked car on a residential street, even in a high crime location known for drug activity, did not justify even a level one inquiry, much less a level three stop. That defendant's interior light was on and he appeared to be looking at something in his lap was innocuous and innocent behavior.
Whether a police intrusion amounts to a level-three encounter turns on whether there has been "a significant interruption with an individual's liberty of movement." De Bour, 40 N.Y.2d at 216. "The test is whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom." People v Bora, 83 N.Y.2d 531, 535 (1994). In the context of police encounters with people in motor vehicles, that analysis involves consideration of factors including whether the police engaged in a chase, activated their emergency lights or sirens, the nature of any verbal commands and whether a loudspeaker was used to issue them, whether the officers approached with weapons drawn, how many officers approached, and where the encounter took place. See Ocasio, 85 N.Y.2d at 984. Based on the facts of this case, including that there was no testimony that the police had a public safety or non-criminal investigative basis for activating their emergency lights, this court finds that the officers effectuated a stop, requiring reasonable suspicion, when they pulled behind defendant's parked car and turned on their emergency lights.
The activation of emergency lights or sirens is a significant factor in determining whether an encounter rises to a level three intrusion. See e.g. Ocasio, 85 N.Y.2d at 984 (noting, among other factors, that police did not use emergency lights or sirens to interfere with the defendant's movement in reasoning that no forcible seizure occurred); Matter of Stewart v Fiala, 129 A.D.3d 852, 853 (2d Dept 2015) (a forcible stop and detention occurred where police officer pulled his vehicle behind a parked car, blocking it in, activated his emergency lights, shined a light from his vehicle into the parked car, and approached it); People v Strong, 234 A.D.2d 990 (4th Dept 1996) (because the defendant's car came to a stop without the police activating their lights and sirens they only needed an objective credible reason to approach it); see also Johnson, - N.Y.3d at *1 (noting that officers did not activate their emergency lights when considering the level of police encounter initiated by the police); People v Small, 156 A.D.3d 820 (2d Dept 2017) (noting police did not activate emergency lights or sirens in concluding defendant was not forcibly stopped before he exited his vehicle); People v Wallgren, 94 A.D.3d 1339, 1340-1341 (3d Dept 2012) (finding only a level one encounter when police stopped their vehicle behind the defendant's stopped car and activated emergency lights, but noting testimony supported public safety basis for lights).
Here, the police effectively stopped defendant and initiated a level three encounter by activating their emergency lights, walking towards his car to request information, and used their flashlights to see inside his car as they approached. See Ocasio, 85 N.Y.2d at 984; Matter of Stewart, 129 A.D.3d at 853. Indeed, both officers testified that they were effecting a "stop" of defendant's vehicle and did not provide - nor did the People establish - any public safety or other non-investigatory reason for activating their emergency lights. Although police officers' characterization of their conduct and their subjective intentions are irrelevant (see Whren v United States, 517 U.S. 806, 813 [1996]; People v Robinson, 97 N.Y.2d 341, 349-250 [2001]), considering the totality of these circumstances, the only reasonable conclusion that can be drawn from the evidence is that the activation of the emergency lights and the officers' approach of defendant's vehicle constituted a significant interruption of defendant's freedom of movement. See Bora, 83 N.Y.2d at 535; De Bour, 40 N.Y.2d at 216; cf. Wallgren, 94 A.D.3d at 1341, n 1 (testimony established emergency lights were activated for the safety of the officers, the defendant, and others traveling on the dark, 55 mile-per-hour roadway, as well as to advise the defendant that the people approaching his vehicle were police officers as opposed to unknown strangers). In the instant case, the police did not offer any justification for activating their emergency lights other than their view that they were conducting a stop. Under these circumstances it would be hard to imagine any reasonable person in defendant's position feeling he was free to disregard the lights and drive off, especially where driving off could lead to dangerous consequences.
Indeed, as a matter of policy such conduct should not be condoned. It would be impossible for a parked motorist to know when emergency lights required him to remain stopped and when they gave him the option to disregard them and drive off.
In any event, even if the initial encounter did not amount to a stop, the police lacked even an objective, credible reason to justify their initial encounter with defendant. Although a level one request for information only requires an "objective, credible reason," courts have cautioned that there are limits on police officers' authority to initiate even that relatively unobtrusive type of encounter. While police officers have "fairly broad authority" to approach and pose questions, they may not do so on mere "whim or caprice." Hollman, 79 N.Y.2d at 190. Moreover, the mere fact that an area is identified as a "high crime area," without more, does not supply an "objective, credible reason" for police to initiate a level one request for information for any person in that area. See People v McIntosh, 96 N.Y.2d 521, 526-527 (2001). The police must also observe or be aware of conduct that provides a "particularized reason" to request information from that person in that area. Id. at 527. Therefore, if there is no nexus between a person's presence in a high crime area and the person's conduct, then the police may not initiate a level one encounter with that person. See id.; People v Stover, 181 A.D.3d 1061 (3d Dept 2020) (police lacked objective credible reason to engage defendant who was in a parked car at night in a high crime area and engaged in an argument on his cell phone); People v Rutledge, 21 A.D.3d 1125, 1126 (2d Dept 2005) (police lacked objective credible reason to initiate encounter with a person who was in a parked car at night in a high crime area and was smoking something); see also People v Laviscount, 116 A.D.3d 976 (2d Dept 2014) (police lacked objective credible reason to approach and shine flashlight into a car parked in an area where cars were not usually parked and the defendant moved something from the dashboard and threw it on the floor of the car).
Here, Officers Psomas and Mueller testified that they saw defendant sitting in a vehicle, parked on the street, near a closed park, in a high crime area, "manipulating" an unknown object in his lap. That behavior, without more, did not provide an objective credible reason for the police to initiate even a level one intrusion - much less reasonable suspicion - even in a high crime area. See McIntosh, 96 N.Y.2d at 526-527; Stover, 181 A.D.3d at 1061; Rutledge, 21 A.D.3d at 1126. Based on those brief, limited observations, the police could not know whether defendant was engaging in criminal activity or innocuous behavior such as using his cell phone. See Johnson, - N.Y.3d at *2; Burnett, 126 A.D.3d at 1494; Layou, 71 A.D.3d 1382 at 1383-1384; Taveras, 155 A.D.2d at 136. Nor do these observations establish a nexus between defendant's presence in a high crime area and his equivocal behavior sufficient to justify even a level one intrusion. At the time the officers stopped their vehicle behind defendant's car, activated their emergency lights, walked towards defendant's car to request information, and used their flashlights to see inside defendant's car as they approached it, they did not know what he was manipulating, much less that he possessed drugs or any other contraband. Indeed, Officer Sierzant had been watching defendant's vehicle for approximately 10 minutes and did not observe any apparent criminal activity. Accordingly, the People failed to establish that the officers were justified in initiating even a level one encounter with defendant.
The People correctly argue that a high incidence of crime in the area of a police-initiated encounter can be considered in evaluating whether the encounter was justified. But it is well-settled that the mere fact that an area is a high crime area, without more, does not justify even a level one encounter. See McIntosh, 96 N.Y.2d at 526-527; Stover, 181 A.D.3d at 1061; Rutledge, 21 A.D.3d at 1126. Indeed, in all of the cases relied upon by the People in support of their argument, the police had some additional basis, not present here, to approach and question the suspect. See People v Barksdale, 26 N.Y.3d 139 (2015) (officer assigned to patrol for trespassers approached defendant in the lobby of a building that was prone to trespassers and was enrolled in a trespass affidavit program); People v Dixon, 203 A.D.3d 1726 (2d Dept 2022) (police had objective, credible reason to approach parked vehicle at night in a high crime area in a parking lot with an active trespass affidavit and no trespass signs posted and the defendant appeared to lack a legitimate reason to be in that lot); People v Allen, 181 A.D.2d 684 (2d Dept 1992) (the defendant and a companion were in a location that had been the site of criminal activity, the companion ran away when the officer entered the building, and the officer had some prior familiarity with defendant); People v Holmes, 181 A.D.2d 27 (1st Dept 1992) (the defendant was with other people who had been arrested previously, in a known narcotics location, had an unidentifiable bulge in his pocket, and walked away when he saw the police car approach). Simply put, the police cannot approach and request information of a person merely because the person is in a high crime area.
Although the officers later observed defendant lift his legs from the driver's seat, arch his back, put what appeared to be a plastic bag in the back of his pants, appeared to be nervous, and later admitted that he possessed drugs, they made those observations only after the unjustified initial encounter. Subsequent conduct cannot validate an unjustified initial encounter. See Moore, 6 N.Y.3d at 498.
Finally, the People's argument that the officers were justified in initiating an encounter with defendant based on a violation of the Vehicle and Traffic Law is unpersuasive. A police officer can stop a vehicle when he has probable cause that the driver has committed a traffic violation. See People v Hinshaw, 35 N.Y.3d at 430; Robinson, 97 N.Y.2d at 349-350. There is no exception for violations that are subjectively characterized as "de minimis." People v Pealer, 20 N.Y.3d 447, 457 n 2 (2013); People v Abraham, 111 A.D.3d 756, 756 (2d Dept 2013). Although vehicles must be parked within twelve inches of the curb or edge of the roadway (see VTL § 1203 [a], [b]), and the court credits the testimony that defendant's vehicle was parked further from the curb than other vehicles parked on the street, neither Psomas nor Mueller testified that the vehicle was parked more than twelve inches from the curb and no officer measured the distance between the defendant's vehicle and the curb. Although Sierzant estimated that the vehicle was parked more than twelve inches from the curb, he did not make that observation until after Psomas and Mueller arrested defendant. Moreover, while a review of the video recordings from the officers' body cameras does indicate that defendant's vehicle was parked slightly further from the curb than other vehicles, it did not clearly establish that defendant was more than twelve inches from the curb. Thus there were no "credible facts establishing reasonable cause to believe" (People v Guthrie, 25 N.Y.3d 130, 133 [2015]) defendant violated section 1203 of the Vehicle and Traffic Law.
Likewise, although the video recordings do show that there was a clear plastic covering on the rear license plate on defendant's vehicle in violation of the Vehicle and Traffic Law (see VTL § 402 [1] [b]), the court does not credit the testimony that this was observed before the stop or was a basis for Psomas and Mueller to stop defendant's vehicle. Therefore, the court rejects the People's argument that this stop was predicated on or justified by probable cause to believe defendant committed a traffic violation. See Hinshaw, 35 N.Y.3d at 430.
Accordingly, all evidence obtained subsequent to defendant's unjustified stop, including the drugs and currency seized from defendant, the handgun seized from defendant's vehicle, and the statements defendant made to the police must be suppressed as the fruit of the poisonous tree. See People v Bailey, 164 A.D.3d 815, 818 (2d Dept 2018). However, the unjustified stop does not require suppression of the records from the Department of Motor Vehicles establishing that defendant's license was suspended or revoked. Those records are not suppressible as the fruit of the stop. See People v Tolentino, 14 N.Y.3d 382 (2010).
This constitutes the decision and order of the court.