Opinion
No. 1355/2011.
2012-06-13
The PEOPLE of the State of New York v. Leopold McLEAN, Defendant.
Richard A. Brown, District Attorney, Kew Gardens (Camencita Gutierrez and Phyllis Weiss, of counsel) for the People. London & Worth, LLP, New York (Stephen C. Worth, of counsel), for the defendant.
Richard A. Brown, District Attorney, Kew Gardens (Camencita Gutierrez and Phyllis Weiss, of counsel) for the People. London & Worth, LLP, New York (Stephen C. Worth, of counsel), for the defendant.
DECISION AND ORDER OF THE COURT
JOEL L. BLUMENFELD, J.
The defendant is charged with various offenses including attempted murder in the second degree, criminal use of a firearm in the first degree, assault in the first degree, reckless endangerment in the first and second degrees, falsifying business records in the first degree, tampering with physical evidence, official misconduct, obstructing governmental administration in the second degree and falsely reporting an incident in the third degree.
In an omnibus motion, the defendant moved, inter alia, for suppression of three firearms seized from his apartment on the grounds that his surrender of the firearms was under the threat of job forfeiture (and therefore not voluntary) and that there was no lawful basis for the property to be seized. The court (Camacho, J.) ordered a hearing to determine the suppression issues.
A Mapp–Wade–Dunaway
hearing was held on February 23, 2012. Detective Brian Brown, Sergeant Daniel Cutter, and Lieutenant Paul Smith testified. From their credible testimony, the court makes the following findings of facts and conclusions of law.
See Mapp v. Ohio, 367 U.S. 643 (1961); United States v. Wade, 388 U.S. 218 (1967); Dunaway v. New York, 442 U.S. 200 (1979).
FINDINGS OF FACT
On November 14, 2010, the defendant, a member of the New York Police Department, allegedly shot the complainant. On that date, the complainant went to the home of his ex-girlfriend. At the home was the ex-girlfriend, the defendant and the complainant; words were exchanged. They all knew each other by name due to previous relationships. When the complainant saw that the defendant was reaching for his ankle, he thought the defendant was reaching for his gun. The complainant turned around and started to run towards the area of Sutphin Boulevard down 119th Street. The complainant alleges that he was shot from behind and in the back during his flight from the defendant.
The complainant called the police, gave his name and the name of the shooter, but refused to come to the police and go to the hospital for treatment out of fear that he would be arrested. He informed them where they could find his blood-soaked clothing that the complaint wore when he was shot. Internal Affairs retrieved these items.
The defendant who allegedly engaged in an off-duty shooting, had not reported the shooting although required to by the Patrol Guide.
On November 16, 2010, Lieutenant Smith was assigned to investigate. He ascertained where the defendant worked, pedigree and picture.
Later on November 16, 2010 at 6:30pm, Deputy Inspector Carrion ordered Detective Brown's team (Group 1) to locate the defendant, a New York Police Department detective for the purposes of modification. Modification is an administrative procedure where a member of the police department's identification card, shield and weapons are removed and that member is assigned to a desk job. The Chief of Internal Affairs, under the Patrol Guide, has the authority to suspend or modify at his or her discretion (see New York Patrol Guide §§ 206–10, 206–17).
The team was told that the detective was a part of the Mayor's Dignitary Protection Unit. They were provided with a picture of the detective and his pedigree information. Listed on the pedigree sheet were three weapons they were told to retrieve.
That evening they went to the defendant's residence in Queens County. He was not home. The police, in plainclothes and in unmarked cars, waited outside of the defendant's home in their cars. At about 10 o'clock the defendant returned home by foot. The police were able to determine it was him through the picture that were provided. Detective Brown asked him if he was Detective McLean and the defendant said yes. Detective Brown and his partner, Sergeant Burns identified themselves as detectives from the police department's Internal Affair Division. They asked if they could talk to him and the defendant invited them into his home.
Inside the defendant's home they had a casual conversation about renovations. Detective Brown noticed one weapon on the table. Sergeant Burns then told the defendant that he was being placed on modified assignment at the authority of Chief Campisi. The defendant asked why and Sergeant Burns explained that we was not at liberty to discuss it; it wasn't his case. They also offered the defendant counseling which is a part of the standard procedure. Sergeant Burns then asked for his identification cards and his weapons. The defendant gave him his identification card. The card was photocopied, using a photocopy machine in the defendant's home, and the defendant was provided with the copy. The defendant removed a gun from his ankle. The defendant also retrieved another weapon from his bedroom. The third weapon was retrieved from the table the team saw when they entered the home. They were also given the holsters and the magazines. The team checked the weapons to verify that they were the same weapons as on the defendant's pedigree sheet.
The defendant called his supervisor.
Subsequently, Lieutenant Smith arrived at the defendant's home, knocked on the door which was opened by the defendant. Sergeant Burns advised Lieutenant Smith that the defendant was placed on modified assignment and Lieutenant Smith, as a ranking officer, reiterated to the defendant that he was being placed on modified assignment under the authority of Chief Campisi pursuant to Patrol Guide 206–7, 206–10 and 206–17. Lieutenant Smith testified that the reason for the modification was “to determine whether or not the effected member of service is fit to perform full duty” (Transcript, page 104):
“Basically, 206–17
is the cause for suspension which denotes the reasons why members of the service may be assigned to such duties.
It is clear that it should be 206–7, not 206–17.
“206–10 is the actual modification of a member of the service NYPD.
“And 207–17
relates to the removal of the service firearms who has been suspended or modified” (Transcript, page 86).
It is clear that it should be 206–17, not 207–17.
Lieutenant Smith told the defendant that he was required to take the defendant's weapons, shield and identification card and advised him that he was to report to One Police Plaza security the next business day to get a new identification card.
Lieutenant Smith asked the defendant if he wanted counseling and the defendant declined. The firearms, already placed in a paper bag, belonging to the defendant, were handed to Lieutenant Smith by Detective Brown.
Lieutenant Smith then left the home and went to the car that was driven by Sergeant Daniel Cutter and handed him the bag containing the three firearms. When they got back to their office, the weapons were vouchered and in accordance with the Patrol Guide the voucher bag stated that it was property of suspended/modified assignment member not to be returned unless approved property of removed/restoration firearms report is presented. These firearms were then sent for ballistics testing.
The next day, on November 17, 2010, Lieutenant Smith called the defendant because they inadvertently left behind the defendant's NYPD identification card which he retrieved from the defendant at his home.
Also on November 17, 2010, Sergeant Cutter met with Lieutenant McTeer, another supervisor in Group 1. They went to Jamaica Hospital to meet with the complainant. Before a photo array was displayed to the complainant, the complainant was told that he was going to be shown a group of photographs that may or may not contain the picture of the person who committed the crime; that hairstyles and facial hair may easily have changed; that the complexion of the persons in the photo may be darker or lighter; and that the complainant should not pay attention to the markings or numbers that appear on or around the photographs. The photo array was compiled by the police department through use of a computer that finds and generates similar images of the suspect. Everyone in the photo array was a member of the police department. The complainant identified the image of the defendant as the one who shot him a few days earlier.
Also on November 17, 2010, ballistics evidence was obtained from a fence post and the next day a ballistics comparison was done.
On November 26, 2010, the defendant was arrested.
The defendant seeks suppression of the three guns and the ballistic reports.
THE ARGUMENTS
The defendant argues that there was no voluntary consent to seize the three firearms. More specifically, defendant states that since he was compelled by the Patrol Guide to hand over his weapons to his employer, the New York Police Department, it cannot be considered a true act of the will; that is, an unequivocal product of an essentially free and unconstrained choice ( see People v. Gonzales, 39 N.Y.2d 122, 129 [1976] ). The defendant argues that when an officer is being placed on modified duty a ranking officer must be present to remove the officer's guns (Patrol Guide 206–10) and therefore the defendant had no choice but to provide his guns to a superior officer or face discipline not limited to automatic suspension.
The People respond that because the defendant handed over his firearms in accordance with the Patrol Guide, there is no fourth amendment issue. Since the modification order requires a ranking officer to seize the weapons, the officers were permitted to seize the weapons. Further, the defendant invited the officers into his home and upon being told that he was being modified, voluntarily gave the officers the weapons along with the holsters and ammunition. The only reason the defendant was allowed to lawfully possess the firearms was due to his status as an active police officer and once that was modified, he was no longer lawfully allowed to possess the firearm. In other words, the evidence was seized pursuant to an authorized administrative procedure.
The People further argue that the defendant freely and voluntarily consented to handover the firearms (citing People v. Gonzalez, 39 N.Y.2d 122 [1976] ).
Finally, the People argue that he had no expectation of privacy once the police lawfully possessed the weapons. The crux of the argument is that once the defendant's assignment was modified, he did not have a legal right to possess the weapons, and once the police lawfully possessed the weapons they could test them without fourth amendment restrictions because the defendant had no expectation of privacy.
The People, as a part of their pleadings, attached three sections of the NYPD Patrol Guide:
206–07: “Cause for Suspension or Modified Assignment”
206–10: “Modified Assignment”
206–17: “Removal And Restoration Of Firearms”
The defendant replied to the People's post-hearing memorandum. His first argument is that it is not a work-related administrative search in that the defendant was the only suspect in a serious criminal matter. Once the police were inside the defendant's home, they ordered him to hand over guns and had the defendant not done so, he would have automatically been suspended. Since the defendant was the only suspect, they used the modification process as a “procedural smokescreen” in order to cover the violation of the defendant's constitutional rights. Furthermore, “[a]n administrative regulation cannot supercede the Fourth Amendment” (citing People v. Postall, 153 Misc.2d 167, 172 [Sup Ct, Kings County 1992] ).
CONCLUSIONS OF LAW
SUPPRESSION OF IDENTIFICATION TESTIMONY
As for the suppression of the identification testimony, considering that the complainant identified the defendant in a photo array by the name he furnished the police when he originally called; it is clear that the complainant was sufficiently familiar with the defendant such that there is little or no risk that police suggestion may have led to misidentification, the identification is merely confirmatory and the requirements of CPL 710.30 do not apply (People v. Rodriguez, 79 N.Y.2d 445, 450 [1992] ).
SUPPRESSION OF PHYSICAL EVIDENCE
After the complainant was allegedly shot by the defendant, the police were informed of the shooting by the complainant. The information the police received was that this person was allegedly shot by an off-duty police officer whom the complainant was able to identify by name. If these allegations were true, the police also received information that an officer discharged his firearm and failed to follow the procedure in the Patrol Guide (Transcript p. 101–2) which includes not only reporting the discharge, but also securing the area and calling for medical assistance.
This information did not provide the police with probable cause to arrest the defendant. However, it was reasonable for the police to investigate—for both administrative violations and potential criminal charges—and during this investigation, it would be reasonable for the police to place the officer on modified assignment.
Patrol Guide 212–29.
When a person is employed by the New York Police Department they are subject to the rules and regulations of the Patrol Guide; they are also required to be familiar with the contents of the Patrol Guide (Patrol Guide 200–01).
“The Department Manual serves as a guide for ALL members of the service. Every member is expected to be familiar with its contents, and to remain current with all new and revised procedures.... The Manual does not contain distinct instructions for every situation that may be encountered in the field. Procedures contained in the Manual provide additional guidance on the most common practices of the Department, and serve as performance expectations. Members are expected to perform their duties in accordance with the legal requirements of their position and the extensive training they have received. Members are also required to conform their conduct with their oath of office, and to the mission, values, strategies, objectives, policies, procedures and legal requirements of the Police Department. All members of the Department will be accountable for their actions and should maintain the highest professional standards” (Foreword from the Police Commissioner, Patrol Guide 200–01). Under the Procedure “Compliance with Orders” are: “1. Be familiar with the contents of the Patrol Guide and revise as directed. 2. Obey lawful orders and instructions of supervising officers” (Patrol Guide 203–03).
“The Patrol Guide is an internal manual—nearly 1,500 closely printed pages—containing thousands of rules, procedures and policies adopted by the Police Commissioner for the governance, discipline, administration and guidance of the Police Department (see, Foreword to New York City Police Department Patrol Guide). It is not a body of law or regulation establishing clear legal duties that should serve as a basis for civil liability of municipalities ... [T]hough some of its provisions are couched in mandatory terms, the Patrol Guide does not prescribe the specific action to be taken in each situation encountered by individual officers, but rather is intended to serve as a guide for members of the Police Department” (Galapo v. City of New York, 95 N.Y.2d 568, 574–5 [2000] ).
“The Patrol Guide ... cover[s] every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself” (Flynn v. City of New York, 258 A.D.2d 129, 138 [1st Dept 1999] ).
The “Cause For Suspension Or Modification” can be found at Section 206–07 of the Patrol Guide. The purpose is “[t]o describe those actions for which uniform ... members of the service may be suspended or ... may be placed on modified assignment.” It allows under step 1
“the Police Commissioner, a deputy commissioner, a hearing officer assigned to the Office of the Deputy Commissioner–Trials, the Chief Surgeon, Deputy Chief Surgeon, a civil director, or a uniformed member of the service in the rank of captain or higher ... may place a uniformed member of the service on modified assignment when, in their opinion, such action is necessary” ( id.).
Both parties do not contest the administrative actions of the Internal Affairs Bureau in issuing the modified assignment order. As to the “service revolver/pistol”, both parties do not contest that the police had the power—and duty—to take possession of the that firearm the defendant possessed under the NYPD Patrol Guide (Transcript, page 74). The defendant raises several issues: First, whether the defendant truly consented to provide the police with the weapons, ammunition and holster. Second, whether the police could seize the “off duty revolver/pistol” the defendant personally purchased. And third, once the officers had executed the modification assignment order, what could they do with the weapons as it relates to this criminal matter.
REMOVAL OF WEAPONS PURSUANT TO BEING PLACED ON MODIFIED ASSIGNMENT
When placing a police officer on modified assignment, the ranking officer in charge must, among other things, remove firearms (Patrol Guide 206–10). A ranking officer is a police officer with the rank of sergeant or above (Patrol Guide 206–17). The procedure for the ranking officer is to obtain the member's firearms—and to ask if the members has any additional pistols or revolvers—and deliver them to the precinct where the order to surrender was given (Patrol Guide 206–17)
. The procedure, once the precinct receives the weapons, is to “[s]end firearms ... to borough office of Property Clerk ... [and] [f]orward to Firearms Analysis Section if circumstances warrant” (Patrol Guide 206–17[12][a] ). Administratively, as relevant to this case, it appears from the record that the police—and the defendant by handing over the weapons—followed the procedure in the Patrol Guide.
It is interesting to note that the defendant had the right to obtain a license to possess the off-duty firearms subject to the state's constitutional regulations ( see McDonald v. Chicago, ––– U.S. ––––, 130 S.Ct 3020, 177 L.Ed 2d 894 [2010];District of Columbia v. Heller, 554 U.S. 570 [2008] ). Had he lawfully possessed the off-duty firearms at his home subject to the license—as opposed being a part of his employment—there may have been a question as to whether the police—absent a search warrant would be allowed to seize—without consent or a search warrant the weapons unrelated to work.
In New York, a person can lawfully possess a firearm only if they are duly licensed unless they are exempted from possessing such a license by virtue of some exemption to the licensing requirements in Penal Law § 265.20. Among those exempted are New York City police officers
( Penal Law § 265.20[b] ). When a police officer possesses firearms through this exemption, they are required to “promptly report in writing to his employer the make, model, calibre and serial number of each such firearm or machine-gun” ( Penal Law § 400.00 [12–c] ). The statutory exemption does not apply to the police officer who because of some change in status in their duties and functions as police officers (e.g., suspension or modification) and had their weapons removed as a part change in status ( see People v. Epperson, 82 N.Y.2d 697 [1993] ). It is irrelevant as to whether the firearm he possessed in the home was provided to the defendant by the police department or the defendant purchased the weapon seized to be used as an off-duty firearm. Both types of weapons were possessed solely by virtue of his status in the police department as he did not obtain a license to possess the off-duty weapons.
Therefore, the firearms were seized through the execution of the modification order and it makes no difference as to whether the firearms were on-duty or off-duty firearms as long as they were possessed pursuant to an exemption under Penal Law § 265.20.
EXPECTATION OF PRIVACY
Once the weapons were lawfully in the possession of the police, the defendant should have known that the weapons could be analyzed pursuant to Patrol Guide 206–17(12)(a). The Fourth Amendment of the United States Constitution and Article I, Section 12 of the New York Constitution are designed to protect a person's privacy wherever that person has a reasonable and continuing expectation of privacy (People v. Perel, 34 N.Y.2d 462 [1974] ). The defendant argues that once the police seized the firearms of the defendant through the procedure to place a police officer on modified duty, they could not transfer the firearms to department that was involved in criminal investigations absent a search warrant. In other words, the question is whether firearms exposed to the police department under proper circumstances and then lawfully held for safeguarding (Patrol Guide 206–17) can be tested and eventually transferred to the Queens District Attorney's Office—without a proper warrant—to be used as criminal evidence against the defendant.
When the defendant turned over the firearms pursuant to a modified assignment order he lost his immediate possessory right in the firearms, but retained a property interest in them. However, just because he had a property interest in those firearms does not mean he had a privacy interest protected by the State and Federal guarantees against unreasonable searches and seizures (People v. Nadal, 75 N.Y.2d 379, 383 [1990];People v. Reynolds, 71 N.Y.2d 552, 557 [1988] ). A constitutionally protected privacy interest requires the existence of a subjective expectation of privacy that society is willing to recognize as reasonable (People v. Rodriguez, 69 N.Y.2d 159, 164–165 [1987];People v. Mercado, 68 N.Y.2d 874 [1986] ).
Considering that the Patrol Guide informs the police officer that if the circumstances warrant, the police could forward to the “Firearms Analysis Section”, it is questionable how the defendant could make a showing that he had any legitimate expectation of privacy in these firearms when they were turned over. While defendant is correct that the Patrol Guide cannot trump constitutional protections, the defendant has not been able to show reasonable and continuing expectation of privacy in the items properly seized.
At the time the weapons were properly seized under the modification order the police did not have probable cause. Once the complainant properly identified the defendant by matching the previously provided name of the defendant with his picture, the police had probable cause to arrest the defendant. At the time probable cause was established, the firearms had already been seized, therefore, there was no need for the state to obtain a search warrant to test the firearms that had already been properly seized. In any event, as previous stated, the Patrol Guide authorizes this testing (see Patrol Guide 206–17[12] [a] ).
CONSENT
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ...” (Fourth Amendment of the United States Constitution and Article 1, Section 12 of the New York Constitution). Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant (N.Y. Const, art I, § 12; US Const, IV, XIV Amends; People v. Gonzalez, 39 N.Y.2d 122 [1976] ). One exception is consent (People v. Gonzalez, 39 N.Y.2d 122 [1976];Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 [1973] ). The People have “the heavy burden of proving the voluntariness of the purported consents” (People v. Gonzalez, 39 N.Y.2d 122 [1976] ). Consent, of course, is only valid “when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice” ( id.): “Where there is coercion there cannot be consent” (Bumper v. North Carolina, 391 U.S. 543, 550 [1968] ).
In assessing the voluntariness of consent, a court should consider:
(1) Custody: Whether the consent was given while the individual was in custody, and how many officers were present;
(2) Background: The personal background of the consenter, including prior experience with the law;
(3) Cooperation: Whether the consenter offered resistance; and
(4) Advised: Whether the police advised the consenter of his right to refuse consent (Matter of Daijah D., 86 AD3d 521, 521–522 [1st Dept 2011] ), citing People v. Gonzalez, supra at 129–30).
(1) Custody: The first factor, whether the consent was given while the individual was in custody, and how many officers were present, is resolved by the fact that the defendant remained at liberty before, during and immediately after turning over these firearms.
(2) Background: The next factor, the personal background of the consenter, including prior experience with the law. The defendant, as a police officer, had prior experience with the law and had agreed to abide by the Patrol Guide at the time he became a police officer. Not having done so, he never would have become a police officer and would have had to apply for a gun permit as an ordinary citizen. Therefore, at the time he became a police officer, he consented at that time to the modification procedures and weapon surrender as contained in the Patrol Guide.
(3) Cooperation: The third factor, whether the consenter offered resistance. When the defendant first met the officers outside of his house as he was coming home, it was raining and he invited the police officers inside. Further, when the officers properly asked him for his weapons, the defendant gave them to the officers. The defendant even had to go into his bedroom to retrieve one of the firearms and the police allowed him to go in by himself.
(4) Advised: The final factor is whether the police advised the consenter of his right to refuse consent. On the surface, it is clear that while the defendant was not advised of his right to refuse consent, as a police officer, he had to know that he had the right to refuse to consent. However, the defendant argues that this is the linchpin of the consent argument. Although in normal circumstances all consenters (i.e., those who provide things without a search warrant) have the right to refuse to consent and police, whether as the ones seeking consent or the consenter, know this. The defendant argues that since he had no right to refuse, the consent exception cannot be used as the reason to justify the otherwise unreasonable seizure of the weapons.
All police officers must follow, among other things, the NYPD Patrol Guide. So the defendant is absolutely correct that as a part of his employment, he was required to comply, under some penalty worse than modified assignment, with the NYPD Patrol Guide's requirements pertaining to the surrender and potential testing of the firearms. However, at the time he chose to become a police officer, he knowingly, intelligently, and voluntarily consented to the terms and conditions in the NYPD Patrol Guide. If he didn't wish to follow it either before being sworn in as a police officer or while serving a police officer, he could have refused to become an officer or resign. The consent given at that time was the condition precedent to his receiving the duty firearm and the ability to get an off duty firearm without a duly issued license. Therefore, his consent was given at the time the officer was sworn in. Had he not done so, the only way he would have been able to obtain one is to apply for a license as an ordinary citizen could. Under those circumstances, he would not have been bound by the Patrol Guide and any seizures would have had to be subject to state and federal constitutional strictures.
Second, although there are consequences to refusing to comply—for example automatic suspension for refusing to obey a lawful order by a ranking member (N.Y.PD Patrol Guide 207–07[2][d] )—he could have still refused. This is not a unique situation. Licensed operators of motor vehicles consent to chemical breath tests at the time the license is issued
and if they refuse to consent “the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked” ( Vehicle and Traffic Law § 1194[2][b] ). Further, the refusal could be used as evidence against the defendant and it does not violate the defendant right against self-incrimination ( People v. Thomas, 46 N.Y.2d 100 [1978] ).
“Any person who operates a motor vehicle ... shall be deemed to have given consent to a chemical test of ... breath ... for the purpose of determining the alcoholic ... content ... provided that such test is administered by or at the direction of a police officer ...” (Vehicle and Traffic Law § 1194[2][a] ).
Accordingly, the court finds that the defendant consented to the potential seizure of the firearm when he became a police officer and took the oath to follow the laws of New York and the Patrol Guide. Therefore, the motion to suppress the firearms, the ammunition and holsters is denied.
The Clerk of the Court is directed to enter this Order. IT IS SO ORDERED.