Opinion
Ind. No. 3825/19
08-15-2022
The PEOPLE of the State of New York v. Luis MOREAUX, Defendant.
Appearing on behalf of the Defendant: Ariel Simon, Esq. and Elizabeth Daniel Vasquez, Esq., Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201 Appearing for the People: Assistant District Attorney Andres Palacio. Kings County District Attorney's Office, Homicide Bureau, 350 Jay Street, Brooklyn, NY 11201.
Appearing on behalf of the Defendant: Ariel Simon, Esq. and Elizabeth Daniel Vasquez, Esq., Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201
Appearing for the People: Assistant District Attorney Andres Palacio. Kings County District Attorney's Office, Homicide Bureau, 350 Jay Street, Brooklyn, NY 11201.
Jill Konviser, J. On March 10, April 1, and April 8, 2022, this Court conducted a combined Dunaway , Huntley , and Mapp hearing. Detective Omar Veliz testified for the People. The defendant did not present any evidence. At the conclusion of the hearing the Court heard oral arguments from the parties. The parties also relied on their previously submitted papers to wit: (1) Defendant's Motion to Suppress, dated May 3, 2021; (2) People's Reply, dated July 12, 2021; (3) Defendant's Reply, dated August 13, 2021; (4) People's Opposition to defendant's Reply, dated August 16, 2021 ; (5) Defendant's Motion to admit Expert Testimony at the Mapp hearing, dated December 6, 2021; (6) Defendant's Motion to Present a Complete Case at the Mapp Hearing, dated January 11, 2022; (7) People's Response the defendant's Motion to Present a Complete Case at the Mapp Hearing, dated February 14, 2022; and, (8) Motion for Leave to File a Brief of Amici Curiae by the American Civil Liberties Union and New York Civil Liberties Union in Support of Defendant's Motion to Suppress, dated March 7, 2022.
Motions 1, 2, 3, and 4 were submitted under seal to comply with a protective order issued by this Court on November 23, 2020.
The ACLU/NYCLU brief, received mid-hearing, parrots precisely the points raised in defendant's motions.
Upon the testimony and evidence elicited at the hearing, as well as the oral arguments and written submissions of the parties, the Court credits the testimony of Detective Omar Veliz and makes the following findings of fact and conclusions of law. Findings of Fact
Detective Omar Veliz, currently assigned to the 75th Precinct Detective Squad, testified that he has been employed by the New York Police Department (hereinafter "NYPD") for more than 19 years. On February 3, 2017, he received information from a confidential source with respect to a homicide that had occurred decades earlier on June 10, 1995. The source provided the name Luis Moreaux as having been a participant in the homicide. Detective Veliz retrieved the homicide case file from the basement of the 75th Precinct and reviewed it. He learned that the homicide took place at an auto shop located at 3196 Atlantic Avenue in Brooklyn. The deceased, Omer Kurt, was a gas station attendant at the location and was found inside the office, strangled to death, with a cord around his neck, a pole across his body and blood pooled next to his head. Detective Veliz learned that the defendant was the same Luis Moreaux who was employed as a mechanic at the Brooklyn auto shop at the time of the homicide. Veliz also learned that fingernail samples from the decedent had been collected during the autopsy and subsequently requested the Office of the Chief Medical Examiner ("OCME") to test the decedent's fingernails for the presence of DNA. On October 31, 2017, Velez received a report from the OCME indicating they had created a profile, identified as Male Donor A, from those fingernail samples.
A Crime Scene photo depicting the aforementioned description of the decedent was introduced at the hearing as People's 2 in evidence.
Detective Veliz identified the defendant as Luis Moreaux at the hearing.
The OCME report was admitted at the hearing as People's 1 in evidence.
As part of the investigation, Veliz performed a background check via departmental computer for Luis Moreaux that revealed both a home address of 616 West 165th Street in Manhattan and a red GMC Yukon SUV registered in his name. Detective Veliz attempted to locate the defendant for the express purpose of obtaining an abandonment DNA sample in the form of a cigarette butt, soda can, water bottle or other discarded item in order to compare the sample with the OCME profile of Male Donor A. In February of 2017, Veliz visited the Manhattan address, but did not observe the defendant or his vehicle. He "ran the license plate" for the Yukon looking for any license plate reader (LPR) hits or summonses. The LPR search revealed that the Yukon had received summonses in the vicinity of 421 St. Lawrence Avenue, a residential block in the Bronx. Detective Veliz surveilled St. Lawrence Avenue and although he did observe the defendant on several occasions, he did not observe him discard anything. Veliz also received information that the defendant worked at Excellence Auto Repair, located at 4184 Park Avenue in the Bronx. He went to that location to determine whether the defendant still worked there and ultimately observed the defendant. After approximately one year of investigating without observing the defendant discard anything, on February 2, 2018, Veliz requested that the NYPD Technical Assistance Response Unit (TARU) install a remote camera close to the Bronx body shop in order to view the location from a distance. Veliz also performed a computer check for Excellence Auto where he learned that the owner, Allesandro Lugo-Mora, had filed a complaint report on February 23, 2018, regarding a missing inspection sticker. On March 23, 2018, Detective Veliz called and spoke to Mr. Lugo-Mora about the missing sticker. Lugo-Mora indicated that the defendant, who had worked at the shop for eight years, might be able to assist, and that he would be available after 10:00 p.m. Detective Veliz went to the body shop on the night of March 23, 2018 at approximately 10:25 p.m. with his partner, Detective Yuan Newton. Once inside, they were greeted by the defendant who introduced himself. After introducing themselves, the detectives indicated they were there to speak about the inspection sticker. The defendant, having spoken to his boss, said that he was expecting their visit. Veliz asked the defendant "if he would follow him to the car so we can speak about it" (Tr. 38) and the defendant agreed. Veliz described the defendant's demeanor as both cooperative and friendly, and that "he was -- looked like he was glad to see the police." (Tr. 41). During their entire interaction, the detectives’ weapons were holstered and covered by their suit jackets and at no point did either make any threats or promises.
The camera, installed on a light pole across the street from Excellence Auto Repair, became operational on March 12, 2018 and was viewable on an NYPD issued iPad.
The detective testified that he was not actually investigating the missing sticker, but rather hoping to obtain an abandonment sample from the defendant.
The People introduced surveillance video from the TARU pole camera showing the entirety of the interaction between the detectives and the defendant while outside of Excellence Auto. The video depicts the detectives outside the shop and the defendant's exit from the shop moments later. The three men head to the police car — the defendant, trailing behind, is not handcuffed, restrained or escorted. Detective Newton gets into the driver's seat and Detective Veliz, the front passenger seat. The defendant opens the rear passenger door, but then leaves the door open and heads back to the shop. Neither detective follows. A few moments later the defendant walks back to the car, enters the rear passenger seat and closes his door. Veliz testified that the car doors were never locked and the defendant opened the door himself not just to enter, but also to exit.
People's Exhibit 5.
Detective Veliz testified that he did not even realize that the defendant had left.
Once in the car, Detective Veliz again brought up the missing inspection sticker. Veliz explained that he had a folder with eight photographs of individuals and wanted to show them to the defendant to see if any of them had ever been to the shop. Veliz handed the defendant the folder. The folder contained eight random photographs of individuals who had nothing to do with either the missing sticker or the homicide investigation. The defendant looked at the photographs and said he did not recognize any of them and handed the folder back to Veliz. The defendant then asked to see the photographs once more and Veliz obliged. The defendant again indicated that he did not recognize anyone and handed the folder back to Veliz. Veliz then asked the defendant to fill out a lost/stolen property report regarding the inspection sticker and provided him with a pen and an envelope. (Tr. 46.) Specifically, the detective asked the defendant "if he can fold [the report] and enclose it in the envelope and seal the envelope." (Tr. 47). The defendant "sealed [the envelope] by licking the flap." (Tr 47). Veliz then asked the defendant "if he [could] place his signature on the envelope." (Tr.47). According to Veliz, he never directed, ordered or forced the defendant to seal, lick or sign the envelope. The interaction with the defendant lasted about ten minutes, the defendant was cooperative throughout, was never handcuffed, restrained, threatened or coerced, the doors to the police car were never locked, and no force was used. As the defendant was getting out of the car he told the detectives that if they ever needed anything else they could come by anytime. After the defendant exited the vehicle, unaided, he closed the door and began to walk away, but before the detectives drove off, the defendant hurriedly returned to the car, knocked on Veliz's window to get his attention and returned the detective's pen.
The envelope and lost property/complaint report documents were depicted in photos introduced at the hearing as People's 4a and 4b in evidence.
Although both the defendant's and amicus’ papers repeatedly allege that the detective specifically told the defendant to "lick" the envelope, the detective testified that that was not so. In fact, he never even used the word "lick," nor did he order the defendant to seal the envelope. The defendant presented no evidence at the hearing to the contrary.
Detective Veliz said that the entire conversation that night was in English, that he is also fluent in Spanish, but had no difficulty understanding or communicating with the defendant in English.
Detective Veliz thereafter placed the envelope in a brown NYPD evidence bag and brought the envelope back to the 75th Precinct where he vouchered and then delivered it to the NYPD lab to send to the OCME for comparison with the DNA profile from the nail clippings. On June 18, 2018, Veliz received a report from the OCME indicating that the comparison test of the DNA from the envelope sealed by the defendant matched the DNA that had been recovered from under the fingernails of the decedent for Male Donor A.
The OCME comparison report was introduced at the hearing as People's 6.
On July 12, 2019, Detectives Veliz and Newton returned to Excellence Auto Repair. They went into the body shop and asked the defendant if he would come back with them to the 48th Precinct regarding an investigation. The defendant agreed. The defendant was not placed under arrest nor was he handcuffed or otherwise restrained when he accompanied Veliz and Newton to the 48th Precinct approximately two to three blocks away.
Detective Veliz did not tell the defendant the investigation to which he was referring concerned the homicide.
After arriving at the 48th Precinct, the defendant, uncuffed, was brought into an interview room in the detective squad. A video of the interview was introduced as People's 7 and a transcript, including translation of Spanish dialogue was introduced as People's 8. The video begins at 11:18 pm with an empty room but for a table and four chairs; a few minutes later Detective Herbert Martin of the Brooklyn North Homicide Squad enters followed by Detective Veliz and the defendant. The defendant is not handcuffed, shackled or otherwise restrained when he enters or at any point during the interview. Neither detective has their firearm. After the defendant enters, Detective Martin introduces himself and they all take seats - the defendant is seated across from Detective Veliz. At 11:22 pm Detective Veliz reads the defendant his Miranda warnings in English from a card, and the defendant agrees to speak to them. Detective Martin initially asks the defendant some background questions. The detectives subsequently inform the defendant they are investigating an incident that had occurred at a gas station in East New York in 1995. The defendant indicates he worked there as a mechanic at that time. The defendant did not recall much about his boss and said that there were three or four mechanics at the gas station who were only co-workers, not friends. When the defendant could not recall their names, Detective Veliz indicated that he would show him pictures. At approximately 11:25 pm Detective Martin asks the defendant if he wants something to drink, to which he replies, no. The detectives then ask about the deceased gas attendant and defendant explains that they were not friends as the deceased was from a different country and did not speak English or Spanish. The defendant says the decedent was a nice guy, he never had any problems with him, and they never had a fight. The defendant indicates he received a call from the gas delivery guy that the police were at the gas station, and subsequently learned that the gas station attendant was dead. He had last seen the decedent the day before his death. The defendant did speak to the police about the matter at the precinct that day and again about ten days after the homicide. The detectives ask if the decedent had problems with anyone to which the defendant says there were no problems. When the defendant is asked what he thinks happened, the defendant says he had heard that the decedent had been bringing women into the office to drink. The defendant is then shown a series of photographs, he identifies the first as a co-worker named Moreno, a second photo as a friend of Moreno's from Miami, the latter of whom arrived the day before the murder. The defendant also says that Moreno's friend "one hundred percent [killed] this guy." Detective Veliz then asks the defendant if he knew how the decedent had been killed. The defendant says he thought the deceased was shot. The defendant identifies a third photograph as Gregorio, another co-worker. Finally, he identifies a picture of himself taken by the police shortly after the murder. Veliz then asks the defendant, while contemporaneously laying out the pictures, if these guys ever told him what happened. The defendant says no. Veliz asks the defendant if he ever heard what happened, "who killed him?" The defendant responds partially in Spanish, partially in English, that the story he heard was that the boyfriend of a girl killed the guy over money owed to the girl for sex. Detective Martin then tells the defendant that if he did not understand something it could be translated into Spanish as Detective Veliz speaks Spanish and if he prefers the interview could continue in Spanish. At that point the dialogue continues in both Spanish and English with the defendant stating in Spanish that "[I] have understood everything until now. There's no problem." The detectives tell the defendant about the DNA, that the defendant's DNA was found under the deceased's fingernails, adding that the defendant had a scratch on his face in 1995 at the time of the homicide. The defendant denies having had an altercation with the deceased or being involved in the homicide. He does not remember ever hugging or play fighting with the deceased either. He continues that he heard the deceased had been shot and that somebody had killed him "with a bang, one bang." He denies having killed the deceased. He does not know how his DNA could have gotten under the decedent's nails, as he never had any problems with him, he did not kill him and does not know who did. At one point both detectives step out. The defendant remains seated, uncuffed, and answers a call on his personal cellphone. Detective Martin subsequently returns with a bottle of water for the defendant. Shortly thereafter, the defendant is told that he is going to be arrested, charged with the murder and processed at the 75th Precinct. The defendant says nothing, and leaves the room, uncuffed, with the detectives.
People's 8 at Page 11.
The defendant indicates there was another co-worker who was not among the photos he was shown.
Detective Veliz had conducted his previous conversation concerning the sticker entirely in English without any difficulty communicating with the defendant.
Transcript translation People's 8 at Page 14.
The defendant's transport from the 48th Precinct to the 75th Precinct was audio recorded. The recording includes the defendant's complaint that his seatbelt was too tight — it was adjusted to ensure his comfort. There was no discussion of the case during the transport. The defendant was subsequently brought into an interview room in the 75th Precinct where he was seated alone, uncuffed, with a drinking cup and his hat on the table in front of him. Detectives Martin and Veliz enter approximately a minute later and remind the defendant about the rights read to him at the 48th Precinct and ask if he wants them to be read again. The defendant replies yes and asks for them to be read in Spanish. Detective Veliz readministers Miranda , this time in Spanish. The defendant, also in Spanish, agrees to speak again, indicating "yes, no problem." At that point the detectives ask whether the defendant remembers anything else. The defendant replies that: he does not remember any more; he told the truth; he does not know who killed the guy; and, he has nothing else to say. When asked whether he would speak to an ADA, the defendant declines. The defendant is again provided water before being taken for processing.
The recording was introduced as People's Exhibit 9.
A video was introduced as People's 10 and a transcript of that video was introduced as People's 11.
Conclusions of Law
Mapp
The defendant moves to suppress both the DNA from the envelope he sealed on the night of March 23, 2018, and the information subsequently obtained from that DNA, arguing that both constituted impermissible searches and seizures in violation of his Constitutional rights.
Although the People opposed the defendant's Mapp hearing request in the first instance on the basis that he failed to establish standing, they argue, too, that even if the defendant had standing, there was no constitutional violation requiring suppression. In an abundance of caution, in this cold-case homicide, the Court granted a Mapp hearing.
The Fourth Amendment to the United States Constitution protects "personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California , 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Specifically, the Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be seized.
U.S. Const. Amend. 4, (emphasis added ).
Art I § 12 of the New York State Constitution contains the identical language, additionally the Fourth Amendment's protections are enforceable against the states by virtue of the due process clause of the Fourteenth Amendment. People v. Nieves , 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975).
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. See People v. Dunbar , 188 A.D.3d 1247,1248, 132 N.Y.S.3d 837 (2nd Dept. 2020) ; People v. Abdul-Mateen , 126 A.D.3d 986, 987-988, 4 N.Y.S.3d 310 (2nd Dept. 2015) ; see also People v. Berrios , 28 N.Y.2d 361, 367-368, 321 N.Y.S.2d 884, 270 N.E.2d 709 (1971). Defendant, however, bears the ultimate burden of proving, by a preponderance of the evidence, that the evidence should not be used against him. See Berrios , 28 N.Y.2d at 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; Dunbar , 188 A.D.3d at 1248, 132 N.Y.S.3d 837 ; People v. White , 153 A.D.3d 1369, 1370, 61 N.Y.S.3d 603 (2d Dept. 2017) ; see also People v. Howard , 59 NY2d 583, 592 (1980)
The defendant sought to call a witness at the hearing, an academic, to discuss the privacy implications of genetic testing, which the People opposed. As the academic had no information regarding the facts of the case, no expertise regarding the constitutional questions raised, and, per the defendant's own notice, "has not previously been qualified as an expert is an academic researcher, not a forensic laboratory analyst and will not be asked to opine specifically about the facts of [defendant's] case," his proposed testimony would have had no bearing or relevance on whether the police conduct here fell within the permissible boundaries of the Fourth Amendment. See, Defendant's Notice of Expert Testimony for Mapp hearing dated December 6, 2021. As such, defendant's application was denied.
The Ruse and the Envelope
The legality of the police conduct here turns on the propriety of the ruse employed by the police during their interaction with the defendant. While it is well settled that the police may employ a ruse in multiple contexts, including to obtain a DNA sample, it is also well settled that the ruse may not be coercive or so fundamentally unfair as to deny due process. See, People v. LaGuerre , 29 A.D.3d 820, 822, 815 N.Y.S.2d 211 (2nd Dept. 2006) (finding the police "did not deprive the defendant of due process when they obtained a sample of his DNA from a piece of chewing gum he voluntarily discarded in the course of a contrived Pepsi taste test challenge") quoting People v. Amador , 11 A.D.3d 473, 474, 782 N.Y.S.2d 371 (2nd Dept. 2004) (ruse used by the police to convince the defendant to leave his home was not coercive or so fundamentally unfair as to deny due process); see also, United States v. Wilbern , 2019 WL 5075838, 2019 U.S. Dist. LEXIS 143286 (WDNY 2019) (where federal authorities had defendant lick an envelope and then used that sample to perform a DNA comparison on the samples collected from the crime scene, court found law enforcement did not conduct an illegal search under the Fourth Amendment in that "the defendant voluntarily relinquished his DNA without any force or compulsion, thus abandoning any reasonable expectation of privacy. [T]here was no trickery or deception in failing to forewarn the defendant that his DNA could tie him to a crime under active investigation. [A]ccordingly obtaining [defendant's] DNA under these circumstances did not constitute unlawful police coercion"); State v. Athan , 160 Wash. 2d 354, 362, 158 P.3d 27 (2007) (finding no Fourth Amendment violation where "detectives, posing as a fictitious law firm, induced [defendant] to mail a letter to the firm, from which [defendant]’s DNA sample was extracted.
Here, the ruse employed by the police included a brief discussion regarding a missing DMV sticker. Veliz testified that the defendant agreed to accompany him to his car, where, once there, he entered on his own, had a brief conversation about the sticker, and then exited on his own. So, too, the defendant, ever cooperative, even went back to the police car to return the detective's pen. At no point did either detective order or direct the defendant to do anything. Indeed, they never touched him. Although the defendant, in urging suppression, alleges the police "directed instructed escorted interrogated walked and made [the defendant] lick the envelope "there is no support for his position in the record. (See, Defendant's Motion to Suppress; Defendant's Reply; Defendant's Motion to Present a Complete case at the Mapp Hearing). Rather, the testimony of Detective Veliz, much of which was corroborated by the pole camera surveillance video, makes plain that the defendant's interaction with the police was entirely consensual, was not custodial in nature and cannot be classified, as the defendant claims, to have been an "invasive and extended interaction." (Defendant's Motion to Suppress, dated May 3, 2021, at 11). Likewise, the defendant's argument that the interaction was coercive based upon a claim that: 1) his job security was in jeopardy because of the missing sticker; 2) the repair shop faced penalties for failure to comply with 15 NYCRR § 79 (8)(14); 3) the police perpetrated a larceny by trick; and, 4) the police violated Civil Rights Law § 79 -1 by taking and testing his DNA, are as baseless as they are unsupported. To be sure, the investigation into the missing sticker was not coercive or so fundamentally unfair as to deny due process. LaGuerre, supra . The evidence presented at the hearing showed that the defendant voluntarily interacted with the police. No evidence was presented indicating that the defendant was forced or coerced into speaking and/or cooperating with the detectives. The defendant voluntarily assisted the detectives, walked to their vehicle, answered their questions, viewed a series of photographs, completed paperwork, placed the paperwork in an envelope, sealed the envelope and handed it back to Detective Veliz. Acquisition of the envelope was not the functional equivalent of the police taking a buccal swab as the defense contends, rather, the defendant relinquished any privacy rights in the envelope and the DNA he deposited thereon when he voluntarily handed it over, just as if he had discarded a piece of chewing gum ( LaGuerre, supra ) or mailed a letter regarding a fictitious class action lawsuit ( State v. Athan, supra ) or sealed an envelope at the request of the FBI ( Wilbern, supra ). Under the facts and circumstances presented here, the brief interaction and recovery of the envelope and the DNA was not an unreasonable search or seizure in violation of either the United States or New York Constitution. As the People have met their burden of establishing the legality of the police conduct in securing the envelope containing the defendant's DNA, the burden shifts to the defendant to show it should not be used. To begin, the defendant provided no evidence at the hearing. And, the defendant's argument that the police conduct violated constitutional norms - "[t]he detectives walked [defendant] outside and had him sit in the backseat of their police car. [t]he detectives instructed [defendant] to lick the envelope and seal it. They then took the envelope from [defendant]" (Defendant's Motion to Suppress, dated May 31, 2021, at 7) were unequivocally proven to be false by the testimony and surveillance video. The defendant has failed to meet his burden to prove, by a preponderance of the evidence, that the evidence, namely the DNA extracted from the lawfully obtained envelope, should not be used against him. See, Berrios, supra .
The Court notes that a pole camera, "technology in public use, while occupying a place it is lawfully entitled to be, to observe plainly visible happenings, does not run afoul" of either the New York or United States Constitutions. See, People v. Destefano , 74 Misc.3d 858, 866, 164 N.Y.S.3d 412 (Sup. Court, Nassau Co. 2022) ; United States v. Moore-Bush , 36 F.4th 320, 345 (1st Cir. 2022).
On March 23, 2018, prior to the aforementioned ruse, the police did not have probable cause to arrest the defendant when they spoke with him. However, they had more than just an "uncorroborated, hearsay-based phone tip" as the defendant argues. (Defendant's Motion to Suppress, dated May 3, 2021, at 11). To be sure, Detective Velez had information from an identified confidential source with whom he had spoken on the phone and in person multiple times prior to March 23, 2018, who had indicated that defendant was responsible for the homicide. Veliz had corroborated much of the source's information based on his review of the case file, including that the defendant had been a suspect in 1995. Finally, Veliz learned that foreign male DNA was recovered from under the decedent's fingernails that resulted in the generation of a profile suitable for comparison. Veliz thereafter continued to conduct the type of thorough investigation that can be characterized as nothing short of good police-work, all while the defendant remained at liberty. Indeed, even after the year-long investigation that ultimately proved unsuccessful in obtaining the defendant's discarded DNA, Veliz continued to investigate — his thoroughness leading to resulting in his learning of the missing inspection sticker report from Excellence Auto, culminating in the use of the missing sticker ruse.
See, FN 22, supra.
Accordingly, the defendant's motion to suppress the envelope and the subsequent recovery of the DNA as violative of the Fourth Amendment is denied.
DNA-The Genomic Search and Genetic Profile
Even if the ruse used to secure the defendant's DNA itself was lawful, the defendant argues that the genome extracted from the envelope and the genetic profile developed therefrom by the OCME was "a second warrantless and unreasonable search" mandating suppression. (Defendant's Motion to Suppress, May 3, 2021, at 15). Specifically, even if the police obtained the envelope legally, the defendant asserts that he retained a privacy interest in his DNA and, therefore, the subsequent extraction and analyses of the DNA for the purpose of developing a DNA profile was an impermissible search within the meaning of the Fourth Amendment. At the core of the defense position is that as advances have been made in DNA testing in recent years, these advances bestow upon him a privacy interest in his DNA separate and apart from the legality of the police conduct in obtaining possession of it.
The defendant's reliance on (Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] in arguing that law enforcement must secure a warrant to test the defendant's DNA is misplaced. Abe A. concerned the compelled collection of corporeal evidence through a blood draw to determine blood type and is clearly distinguishable.
In support of their argument, the defendant avers that the developed genomic information must be suppressed based on an application of analogous holdings of the Supreme Court regarding historical cell-site location information (CSLI) ( Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 [2018] ); searches of the contents of a seized smart phone ( Riley v. California, 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 [2014] ) and thermal imaging of a home ( Kyllo v. United States , 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 [2001] ) - all outside of the DNA realm.
In Carpenter , the Government attempted to invoke the Fourth Amendment's third-party exception for a defendant's historical cell-site location information obtained from a cell phone service provider that the defendant had "given" to the service provider by using his cell phone. See, Smith v. Maryland , 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In rejecting the Government's argument, the Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information]." Carpenter , 138 S.Ct. at 2217. In this case, while Carpenter may offer a level of superficial appeal, here, unlike Carpenter , law enforcement did not obtain the defendant's DNA via a third-party but rather from an envelope that the defendant abandoned when he voluntarily provided it to Detective Veliz.
Notably, Carpenter was specifically limited to CSLI as the Court stated "[o]ur decision today is a narrow one. [w]e do not express a view on matters not before us." 138 S. Ct. at 2220 ; see United States v. Moore-Bush , 36 F.4th 320, 337 [1st Cir. 2022] ).
In Riley , the contents of the defendants’ cell phones were searched after they were arrested and evidence obtained from the cell phones was then used to charge them with additional offenses. The instant case, however, did not involve the recovery of evidence pursuant to a search incident to arrest as in Riley , but rather, involved the defendant's voluntary abandonment of his interest in his DNA when he licked an envelope and handed it to Detective Veliz. Kyllo is similarly inapposite as that case involved law enforcement's use of extra-sensory technology to invade the privacy of the defendant's home, not search property voluntarily abandoned.
The instant case is factually similar, however, to Wilbern, supra , decided after Carpenter, where the FBI had a defendant lick an envelope and then used that sample to perform a DNA comparison on the samples collected from a crime scene. The court in Wilbern held that law enforcement did not conduct an illegal search under the Fourth Amendment in that "the defendant voluntarily relinquished his DNA without any force or compulsion, thus abandoning any reasonable expectation of privacy." Wilbern , supra at *7, 2019 U.S. Dist. LEXIS 143286 at *22. In further support of his argument, the defendant cites ( Skinner v. Railway Labor Executives’ Ass'n , 489 U.S. 602, 616-617, 109 S.Ct. 1402, 103 L.Ed.2d 639 [1989] ) and ( United States v. Davis, 690 F.3d 226 (4th Cir. 2012) arguing that a Fourth Amendment search occurs when a substance is obtained from which DNA can be extracted. Both, however, are distinguishable. In Skinner , the biological material that was analyzed was urine, "which may in some cases involve visual or aural monitoring of the act of urination" was compelled pursuant to a national railroad policy, unlike here, where the defendant voluntarily licked an envelope. Id. at 617, 109 S.Ct. 1402 ; See, Lovchik v. Commonwealth , 2020 WL 6139896 , 2020 Va. App. LEXIS 249 [Ct. App. Oct. 20, 2020, No. 1094-19-4]. Although the Fourth Circuit in United States v. Davis subsequently held that the extraction and analysis of DNA was a search "because the analyses of biological samples can reveal a host of private medical facts and" may, "intrude[ ] upon expectations of privacy that society has long recognized as reasonable," ( Davis , 690 F.3d at 243 quoting Skinner , 486 U.S. at 616-17, 109 S.Ct. 1402 ), numerous courts subsequently rejected extending that holding in the context of the type of DNA comparison for identification purposes involved here. The extraction and analysis of DNA for the sole purpose of developing a DNA profile — in and of itself, and apart from the legality of the means by which the item from which the DNA is extracted is obtained — does not constitute an unreasonable search within the meaning of the Fourth Amendment. See, Raynor v. State , 440 Md. 71, 99 A.3d 753 (2014) ; Commonwealth v. Arzola, 470 Mass. 809, 26 N.E.3d 185 (2015); Lovchik v. Commonwealth, supra ; United States v. Hicks, 2020 U.S. Dist. LEXIS 232749, (W.D. Tenn. 2020). "the extraction and analysis of DNA for the sole purpose of developing a profile is not, ‘deeply revealing’ or of substantial ‘depth, breadth, and comprehensive reach,’ since the genetic information obtainable from DNA that is deeply revealing and comprehensive is neither sought nor revealed in the process" (emphasis added ). People v. Mendez , supra at 719, 155 N.Y.S.3d 534.
The Supreme Court ultimately agreed that the compelled taking of urine was a search but held that the regulations were reasonable within the meaning of the Fourth Amendment and reversed the Ninth Circuit. Id. at 634, 109 S.Ct. 1402.
It should be noted that the Fourth Circuit affirmed the denial of Davis ’ suppression motion, finding that the good faith exception to the exclusionary rule applied.
In Maryland v. King , 569 U.S. 435,464, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), decided the year after Davis , the United States Supreme Court held that taking a buccal swab from a person arrested for a serious offense to obtain the person's DNA sample was reasonable under the Fourth Amendment. The Supreme Court noted that "the CODIS loci that comprise a DNA profile come from noncoding DNA parts that do not reveal the genetic traits of the arrestee" and "at present [do not] reveal[ing] information beyond identification," are constitutionally permissible adding that, whether DNA "reveals any private medical information at all is open to dispute." See People v. Mendez, 73 Misc. 3d 715, 719, 155 N.Y.S.3d 534 (Sup. Ct. Bronx County 2021) quoting King. And, in 2020, seven years after Davis , the Court of Appeals in ( People v. Goldman , 35 N.Y.3d 582, 135 N.Y.S.3d 48, 159 N.E.3d 772 ) explained, "the DNA profile sought [in King ] was developed pursuant to national standards from a particular noncoding region of the chromosomes, which, ‘while useful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits’ " Goldman, supra at 592, 135 N.Y.S.3d 48, 159 N.E.3d 772, quoting King, 569 U.S. at 443, 133 S.Ct. 1958. "In balancing the legitimate government interest at issue in King with the respondent's reasonable expectations of privacy, the Court emphasized that the Maryland statute at issue in the case permitted ‘law enforcement officers [to] analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched’ " and " ‘provide[d] statutory protections that guard against further invasion of privacy.’ " Goldman, supra ; quoting King, supra at 464-465, 133 S.Ct. 1958. "In that regard, we note that the Executive Law demands an accredited state laboratory conform to the national DNA index system in developing the DNA profile from limited loci and imposes a similar duty to maintain the confidentiality of the results of DNA testing to avoid unwarranted disclosures (see Executive Law §§ 995-c, 995-d ; 9 NYCRR 6192.3 [b]." Goldman, supra, at 593, 135 N.Y.S.3d 48, 159 N.E.3d 772. In this case, as the OCME tested the defendant's DNA solely for the purpose of generating a unique identifier for comparison to the fingernail scrapings of the decedent, in accordance with Goldman and King , this Court finds there was no unreasonable search in violation of the United States or New York Constitutions requiring suppression.
Finally, to adopt the position proposed by the defense and amicus and find that the defendant retained a privacy interest in DNA that he abandoned and that the police lawfully obtained, would effectively result in the elimination of the use of abandoned DNA as an investigative tool — an untenable, unreasonable and unsound result. Indeed, and as the Supreme Court has stated "[s]ince the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, law enforcement, the defense bar, and the courts have acknowledged DNA testing's ‘unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.’ " King, supra at 442, 133 S.Ct. 1958 ; quoting DA's Office v. Osborne , 557 U.S. 52, 55, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). That the "genomic regions" being explored due to the advances in DNA may lead to the ability of law enforcement to obtain more information about an individual than is required for identification is entirely beside the point. It seems clear, based on the holdings in King and Goldman , that both the United States Supreme Court and the New York Court of Appeals are fully aware that a defendant's privacy interests in DNA are adequately protected by the current limitations for which law enforcement may generate a genetic profile.
Dunaway
As the Court has already determined that the police lawfully obtained the defendant's DNA on March 23, 2018, and that the subsequent testing by the OCME was constitutionally permissible, the People have met their burden of demonstrating that the police had probable cause to arrest the defendant on July 13, 2018. Of course, "[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt." People v. Mercado , 68 N.Y.2d 874, 877, 508 N.Y.S.2d 419, 501 N.E.2d 27 (1986). Rather, it must be "more probable than not that a crime has taken place and that the one arrested is its perpetrator." People v. Carrasquillo , 54 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 (1981). In the instant matter, after an extensive investigation, the police lawfully obtained a sample of the defendant's DNA that was subsequently compared to the DNA profile of Male Donor A from the fingernail clippings of the deceased. Based on the subsequent determination by the OCME that the defendant's DNA was a match to the DNA of Male Donor A, the police had probable cause on July 13, 2018 to arrest the defendant for causing the death of Omer Kurt. See generally People v. Jackson , 168 A.D.3d 473, 91 N.Y.S.3d 71 (1st Dept. 2019) ; People v. Young , 152 A.D.3d 981, 59 N.Y.S.3d 535 (3d Dept. 2017) ; People v. Bethune , 65 A.D.3d 749, 884 N.Y.S.2d 503 (3d Dept. 2009).
Huntley
The defendant moves to suppress statements made by him, both prior to his arrest pursuant to the ruse and subsequently after he accompanied the police to the 48th and 75th precincts.
The March 23, 2018, Sticker Discussion
As the Court finds that the defendant was not in custody on March 23, 2018 at the time the police first spoke with him regarding the vehicle sticker, there was no custodial interrogation requiring the administration of Miranda warnings. The Court finds the defendant's statements, solely relating to the investigation of the sticker, and entirely unrelated to the crime for which he is charged, were voluntarily made.
The Two Mirandized Videotaped Statements
The defendant further moves to suppress his post- Miranda video recorded statements, one beginning on July 12, 2019 at the 48th Precinct in the Bronx, the other from July 13, 2019 at the 75th Precinct, including the defendant's audio recorded transport from the 48th Precinct to the 75th Precinct to the extent it constitutes a statement. The uncontradicted hearing testimony and the video recordings establish that the defendant was advised of his Miranda rights at the beginning of each precinct statement, explicitly waived those rights, and agreed to speak. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; see also People v. Anderson , 146 A.D.2d 638, 536 N.Y.S.2d 543 (2d Dept. 1989) ; see generally, People v. Rivas , 175 A.D.2d 186, 572 N.Y.S.2d 336 (2d Dept. 1991).
At the 48th Precinct, the defendant initially proceeded in English, albeit with an accent, just as he had when Detective Veliz spoke to him on March 23, 2018, regarding the sticker. The defendant acknowledged his employment at the garage in 1995, his relationship with the deceased and identified photographs of his co-workers, a co-worker's friend, himself and the deceased. The defendant otherwise denied having committed the homicide or knowing who did, beyond a recitation of what he had heard may have happened. Even though the defendant thereafter requested to have certain parts of the conversation translated into Spanish, he specifically indicated that he had understood everything up until that point and nothing fundamentally changed with the defendant's responses once he started speaking Spanish. The defendant denied involvement in the homicide in both languages. All of the defendant's answers up to that point had been responsive to the questions the detectives asked. The defendant subsequently was re-advised of his Miranda rights at the 75th Precinct, in Spanish, at his request, and again agreed to speak. The defendant continued to deny having been involved in or knowing who committed the homicide.
The Court, having observed the entirety of the defendant's video statements, concludes that the defendant understood the Miranda instructions. As to the initial warnings provided in English, the defendant responded clearly in English that he understood, and even after Detective Veliz began translating portions into Spanish, the defendant continued to converse fluently in both languages. The defendant's request to have the warnings recited in Spanish and his subsequent waiver and willingness to continue speaking to the detectives further underscores the voluntariness of the defendant's statements.
As stated in ( People v. Williams , 62 N.Y.2d 285, 288-289, 476 N.Y.S.2d 788, 465 N.E.2d 327 (1984) :
To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made ... [and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation.... An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process (citations omitted ).
As the Court of Appeals stated in ( People v. Sirno , 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479 [1990] ), when a defendant indicates that he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to commencement of interrogation is necessary to support a conclusion that the defendant waived those rights" (citing People v. Davis , 55 N.Y.2d 731, 447 N.Y.S.2d 149, 431 N.E.2d 634 [1981] ; North Carolina v. Butler , 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
The Court also notes that, in addition to being uncuffed throughout both statements, the defendant was in custody for a short period of time prior to the interview, and both interviews were relatively brief and cordial. Furthermore, he was offered and provided water at each precinct, and even answered his own personal cell phone during the interview process, thereby underscoring the voluntariness of the defendant's statements.
So, too, the Court finds that the comments of the detectives to the defendant did not create a danger of a false confession as, under the totality of the circumstances, they were not of such a nature that they would have "overborne" defendant's will. See, People v. Justiniano , 186 A.D.3d 1257, 1258, 127 N.Y.S.3d 886 (2nd Dept. 2020) ; citing People v. Mateo , 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 (2004). Indeed, the defendant completely and repeatedly denied involvement in the homicide in two languages.
The Court thus finds that defendant knowingly, voluntarily and intelligently waived his rights prior to each of the videotaped statements and agreed to speak to the detectives without representation. See, Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 (2014) ; People v. Cohen, 121 A.D.3d 708, 709, 993 N.Y.S.2d 185
Accordingly, defendant's motion to suppress the videotape recordings, and audio recording in the car, from July 12 and 13 of 2019 at the 48th and 75th Precincts is denied.
Conclusion
Accordingly, the defendant's motions to suppress are denied in their entirety as detailed above. This constitutes the Decision and Order of this Court.