Opinion
9434-2017
02-11-2019
PEOPLE of the State of New York v. Andre PRIMUS, Defendant.
For the People: James Buchanan, Esq., Kings County District Attorney's Office For Defendant: Masai Lord, Esq.
For the People: James Buchanan, Esq., Kings County District Attorney's Office
For Defendant: Masai Lord, Esq.
Joanne D. Quinones, J.
The defendant is charged with one count of Criminal Possession of a Weapon in the Degree, in violation of Penal Law (PL) section 265.03(3), two counts of Criminal Sale of a Firearm in the Third Degree, in violation of PL sections 265.11(1) and 265.11(2), one count of Attempted Criminal Sale of a Firearm in the Third Degree, in violation of PL section 265.11(2), and one count of Criminal Possession of a Firearm in violation of PL section 265.01-b(1).
This court conducted a Mapp /Dunaway hearing on January 28, 2019. The sole witness at the hearing was Detective Joseph Scialabba, who testified on behalf of the People.
I make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Detective Scialabba has been with the New York City Police Department (NYPD) for 17 years and is currently assigned to the 34th Precinct Detective Squad (Hearing Transcript [Tr] at 6). Detective Scialabba testified credibly that in March 2016, while assigned to the Firearms Investigation Unit, he was the lead investigator on a team investigating the illegal sale of firearms in the East Flatbush and Fort Greene areas of Brooklyn (Tr at 7-8). During the course of the investigation, the team identified JD Trini, later known as Ricardo Cameron, as the subject of the investigation (Tr at 8). Prior to December 19, 2016, Undercover Officer (UC) 180 had purchased firearms from Mr. Cameron on three separate occasions (Tr at 8-9).
On December 19, 2016, Detective Scialabba and his team planned to conduct an undercover buy of firearms from Mr. Cameron at the intersection of Vanderbilt and Willoughby Avenues in Kings County (Tr at 9). UC 180 coordinated the details of the buy with Mr. Cameron, the arrangement was for the UC to purchase two firearms from Mr. Cameron (Tr at 9-10). On the day of the planned buy, the members of the field team, including Detective Scialabba and the UC, held a tact meeting where the general set up and location of the buy, safety and extractions points for the UC, and method of communication among the field team were discussed (Tr at 11). Point-to-point radios and a kel were used for communication among the field team (Tr at 11). The UC was equipped with a kel, a one-way radio, from which he could transmit but not receive information (Tr at 12). Field team members Lt. McPartland and Sgt. Abramson were equipped with kel receivers which enabled them to hear what was happening with the undercover, but the undercover could not hear them (Tr at 12).
At approximately 9:00 pm, members of the team arrived at the buy location in separate cars (Tr at 13, 15-16). The UC drove to the location alone (Tr at 13). Detective Scialabba was parked on Willoughby Avenue (Tr at 17). From his position, he could see the UC's vehicle, which was across Vanderbilt Avenue, also parked on Willoughby (Tr 17). A map of the location indicating the positions of the field team members was entered into evidence as People's No. 1.
At approximately 9:45 pm, Detective Scialabba saw Mr. Cameron walking on the sidewalk on Willoughby Avenue, approximately 10 feet from his vehicle (Tr at 18-19). He observed that Mr. Cameron had nothing in his hands (Tr at 19). Mr. Cameron then turned right onto Vanderbilt Avenue and the detective lost sight of him for approximately three minutes (Tr at 19-20). Once Mr. Cameron rounded the corner onto Vanderbilt, the detective received a radio transmission from the lieutenant who said he saw Mr. Cameron walking across the street to a vehicle on Vanderbilt (Tr at 19). The lieutenant also radioed that Mr. Cameron had stopped at the vehicle (Tr at 19). When Detective Scialabba saw Mr. Cameron again, Mr. Cameron was turning right onto Willoughby from Vanderbilt, approximately eight car-lengths away, now holding a bag (Tr at 20). He observed Mr. Cameron enter the UC's vehicle and also observed when Mr. Cameron exited the UC's vehicle (Tr at 20). While Mr. Cameron was inside the UC's vehicle, the detective was receiving radio transmissions from the lieutenant about how the buy was going (Tr at 20). After Mr. Cameron exited the UC's vehicle, the lieutenant radioed that there was a positive buy and directed the field team to move in (Tr at 21).
Detective Scialabba then arrested Mr. Cameron at the corner of Vanderbilt and Willoughby Avenues (Tr at 21). The detective observed him to be holding a black duffle, gym-like bag, which was empty (Tr at 21, 55-56). While he was effecting the arrest, Detective Scialabba was advised via radio that the lieutenant had stopped the vehicle that Mr. Cameron had stopped at prior to the sale (Tr at 21). After Mr. Cameron was placed in custody, Detective Scialabba went to the location of the stopped car, which was about half a block away (Tr at 21-22). He observed a male, who he identified as the defendant, stopped next to a gold Hyundai Elantra (Tr at 23). The lieutenant informed Detective Scialabba that he stopped the car because it was the car Mr. Cameron had stopped at prior to meeting with the UC (Tr at 21, 23-24). Detective Scialabba could smell a strong odor of marihuana from the defendant's car (Tr at 24). The defendant was patted down on the scene by other members of the team and nothing was recovered (Tr at 25). The defendant was arrested and taken to the 88th Precinct for arrest processing (Tr at 25).
At the 88th Precinct, Detective Scialabba searched the defendant, categorized his property, which consisted of two cellphones and "other items", and then the property was vouchered (Tr at 25-26). With respect to the recovery of property, Detective Scialabba explained that "once people are arrested, there's a search on the scene for weapons [and] in order to keep all the property organized, we bring — we leave things that won't hurt us in their pockets so nothing gets mixed up and bag at the precinct. I would recover all the items out of each individual's pockets and keep it separated so nothing gets lost or mixed up" (Tr at 26). According to the officer, the purpose of this search is "to categorize their belongings and also to do a better search" for contraband before individuals are placed into a cell (Tr at 26). Later that night, Detective Scialabba met with the UC who gave him the two firearms that were purchased from Mr. Cameron (Tr at 27). The first was a machine pistol/assault rifle-style gun, and the second was a pistol (Tr at 27). Detective Scialabba estimated the machine pistol to be about shoulder-width long and not capable of fitting inside a person's pocket (Tr at 27). The second gun was described as a small pistol (Tr at 27). A few days later, Detective Scialabba returned to the scene to canvass for video and recovered video surveillance which was introduced into evidence as People's # 2 (Tr at 28).
During cross examination, Detective Scialabba stated that the same vehicle the defendant was sitting in during the December 19, 2016, controlled buy was also near the controlled buy that took place between Mr. Cameron and the UC in August 2016 (Tr at 48). Detective Scialabba ran the license plate number and learned that the car was registered to the defendant (Tr at 48). Detective Scialabba ran the defendant's criminal history, safety-netted the vehicle, and made a notation in his DD5 reports (Tr at 48). The Detective Scialabba did not investigate any further because he was not "absolutely sure" that the vehicle was involved in the case (Tr at 48).
CONCLUSIONS OF LAW
At a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct ( People v. Hernandez , 40 AD3d 777, 778 [2nd Dept 2007] ; People v. Moses , 32 AD3d 866, 868 [2nd Dept 2006] ; see also People v. Wise , 46 NY2d 321, 329 [1978] ; People v. Whitehurst , 25 NY2d 389, 391 [1969] ). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time ( People v. DeBour , 40 NY2d 210, 215 [1976] ). If the People satisfy their initial burden, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" ( People v. Berrios , 28 NY2d 361, 367 [1971] ).
Here, the police were conducting a controlled buy with a known target, Mr. Cameron, at a specified time and place. When Detective Scialabba first observed Mr. Cameron he had nothing in his hands. The detective then lost sight of him for approximately three minutes during which the detective was informed that Mr. Cameron had stopped at the gold Hyundai Elantra belonging to the defendant. When Detective Scialabba regained sight of Mr. Cameron, Mr. Cameron was holding a duffle bag. Mr. Cameron then entered the UC's vehicle and sold the UC two firearms.
It is without question that the police had probable cause to arrest Mr. Cameron for the illegal sale of firearms. The question for this court, however, is whether there was probable cause to arrest this defendant.
It is well-established that "[a] person, otherwise acting innocently, may not be arrested merely because he was in the company of another person who had engaged in criminal activity" ( People v. Batista , 68 AD2d 515, 516 [1st Dept 1979] ). In People v. Martin , 32 NY2d 123 (1973), the Court of Appeals considered whether the police had probable cause to arrest a defendant who was in the company of two individuals while the two engaged in a hand-to-hand drug sale. In Martin , the defendant was observed conversing with a male in front of a bar. The defendant and the male entered the bar and exited a few minutes later with a female. The three then walked down the block and glanced back in the direction of the plain-clothed officers. The arresting officer observed the female and the male exchange envelopes for money. The police then arrested all three individuals and a search of the defendant resulted in the recovery of a glassine envelope from his wallet. The arresting officer conceded that he had not observed the defendant engage in any criminal activity and that the defendant was arrested because he was in the company of the male and female. The court held that in the absence of any overt criminal activity, the defendant's mere presence at a narcotics transaction did not constitute probable cause for his arrest.
In reaching its decision, the Court found instructive the decision in United States v. Di Re , 332 US 581 (1948). Defendant Di Re, the front-seat passenger of a vehicle, was arrested together with the driver after the driver sold counterfeit gasoline ration coupons to an informant in the back seat. At the police station, Di Re was directed to empty his pockets and two gasoline and several fuel oil rations were found. A subsequent search of Di Re resulted in the recovery of 100 inventory gasoline rations, all of which proved to be counterfeit. In affirming the decision of the Court of Appeals which found that the evidence recovered from Di Re was the fruit of an illegal arrest and search, the Supreme Court of the United States considered that there was no evidence that Di Re heard or took part in any conversation related to the sale, that the meeting between the driver and the informant-buyer took place in a public street in plain sight of passers-by, and that even if Di Re had witnessed the passing of papers from hand to hand, "it would not follow that he knew they were ration coupons, and if he saw that they were ration coupons, it would not follow that he knew them to be counterfeit" ( Di Re , 332 US at 593 ). That Di Re was found in possession of 100 counterfeit inventory gasoline rations did not convert the unlawful arrest into a lawful one. The Court wrote, "We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success" ( id. at 595 ).
Here, there is even less than there was in Martin and Di Re . At the time of his seizure by the police, the defendant was sitting in the driver's seat of his vehicle, half a block away from the illegal sale of guns by Mr. Cameron. Unlike the defendant in Di Re, he was not present inside the UC's vehicle where the sale took place. At no point was the defendant observed engaging in any overt criminal activity. The only evidence connecting the defendant to the illegal sale of firearms on December 19, 2016 is that at some point in the three minutes between the detective's first sighting of Mr. Cameron without a bag and his second sighting of Mr. Cameron with a duffle bag, Mr. Cameron "stopped" at the defendant's vehicle. Significantly, there was no testimony that Lt. McPartland, who was parked directly in front of the gold Elantra, observed the defendant hand Mr. Cameron a duffle bag or that the lieutenant observed Mr. Cameron retrieve the bag from the defendant's vehicle. Nor was there any testimony that the defendant engaged in conversation or interacted with Mr. Cameron at any point prior to the sale, as in Martin . There was also no testimony that Mr. Cameron was seen entering, exiting or inside the defendant's vehicle. When asked what Lt. McPartland told him as to "what happened at the Hyundai," Detective Scialabba stated "He said that we stopped the car because this was the car that was involved, that the subject had walked up [to]" (Tr at 23-24).
Here, there was simply no evidence presented that the defendant had knowledge of the bag's contents or of the illegal firearm sale. The facts elicited at the hearing amount to nothing "more than mere suspicion and surmise of illegal activity" ( People v. Calder , 44 AD2d 683, 684 (2nd Dept 1974] ). Additionally, the fact that the defendant's vehicle was in the vicinity of a prior controlled buy between the UC and Mr. Cameron is not enough to support a finding of probable cause. The detective conceded that he didn't know whether the defendant's vehicle had any involvement in the prior buy and in any event, the detective was not even aware of the vehicle's presence at the buy location on December 19 until after the defendant was seized. Moreover, it was the lieutenant who initially seized the defendant and there is nothing in the record establishing that the lieutenant knew that the defendant's vehicle had been in the vicinity of the prior buy.
Contrary to the People's contentions, the facts known to the police at the time of this defendant's arrest do not constitute probable cause. Without more, the defendant's presence at the scene of an illegal firearms sale is insufficient to establish probable cause for his arrest (see People v. Jackson , 119 AD2d 694 [2nd Dept 1986] [no probable cause established where the defendant was at a location known for drug activity but was not seen engaging in any criminal activity]; People v. Elliotte , 283 AD2d 719 [3rd Dept 2001] [in the absence of overt criminal activity, furtive behavior or evidence that defendant had knowledge of the drug sale, his mere presence at a narcotics transaction was insufficient to establish probable cause for his arrest]; see also People v. Pelchat , 62 NY2d 97 [1984] [where defendant was not observed to be engaging in any criminal activity, his presence inside a house where bales of marihuana were located was insufficient to support an indictment for criminal possession of marihuana charges] ). Because the police lacked probable cause to arrest the defendant, the recovery of the two cellphones from his person must be suppressed as fruits of an unlawful arrest.
Assuming, arguendo , that there was probable cause to arrest the defendant, the defendant's motion to suppress the cellphones recovered from his person must still be granted. Here, the People failed to meet their burden of establishing that the cellphones were recovered pursuant to a proper inventory search or as a search incident to a lawful arrest.
The defendant argues, and the People concede, that the search of the defendant at the precinct was an inventory search. An inventory search is "a search designed to properly catalogue the contents of the item searched" ( People v. Johnson , 1 NY3d 252, 256 [2003] ). An inventory search is designed to further the goals of protecting the owner's property, protecting the police against claims of lost or stolen property, and protecting the police from dangerous instruments (id. , citing Florida v. Wells , 495 US 1, 4 [1990] ). In order to establish that the evidence was recovered in the course of a valid inventory search, the People are required to offer proof that the search was "conducted pursuant to ‘an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably’ " ( Johnson , 1 NY3d at 256, quoting People v. Galak , 80 NY2d 715, 719 [1993] ). Additionally, the People are required to establish that the search actually produced "a meaningful inventory list" ( Johnson , 1 NY3d at 256 ; see also Galak , 80 NY2d at 720 [an inventory search must "create a usable inventory"] ). "Courts may take judicial notice of the standardized search procedure. While this procedure need not be offered into evidence, a description of what the procedure requires must be proffered" ( People v. Gomez , 13 NY3d 6, 11 [2009] ). Furthermore, when determining the validity of an inventory search, "two elements must be examined: first, the relationship between the search procedure adopted and the governmental objectives that justify the intrusion and, second, the adequacy of the controls on the officer's discretion" ( Galak , 80 NY2d at 718-719 ). "[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence," but rather an administrative procedure designed to produce an inventory ( Wells , 495 US at 4 ).
Here, the People have not satisfied their burden of proving that the search of the defendant was reasonable under the circumstances and conducted pursuant to standardized police protocols. At no point did Detective Scialabba testify to any departmental procedures or policy regarding inventory searches. Even if the court were to take judicial notice of the search procedure, there was no testimony describing what that search procedure requires or that the search was conducted in accordance with those procedures (see Gomez , 13 NY3d at 11 ["Although the NYPD has a standardized, written protocol governing inventory searches in its Patrol Guide and the arresting officer testified that he was familiar with it, the People offered no evidence that the police officers conducted this search in accordance with the protocol").
The recovery of the cellphones also cannot be justified as a search incident to arrest. The purposes of a search incident to arrest are to seize weapons when there is reason to fear for the officer's safety and to prevent the arrestee from destroying evidence of criminal involvement ( Chimel v. California , 395 US 752, 763 [1969] ; People v. Belton , 55 NY2d 49, 52-53 [1982] ). Thus, the scope of such a search must be limited to the arrestee's person and the area within the arrestee's immediate reach ( Belton , 55 NY2d at 53 ).
In their closing argument, the People assert that "the cellphones were seized at the moment of arrest [and that] a search incident to defendant's lawful arrest is, therefore, valid." The People's assertions are belied by the court record. Here, Detective Scialabba testified that the defendant had been searched on the scene by other members of the field team and that nothing had been recovered (Tr at 25).While the team's practice may be to "leave things that won't hurt us in their pockets so nothing gets mixed up" (Tr at 26), there was no mention that any officer found, let alone recovered or seized, cellphones from the defendant at the scene. On cross-examination, the detective specifically stated that he was the officer who recovered the cellphones and that they were recovered at the precinct (Tr at 60). Had there been probable cause to arrest the defendant, the search conducted on the scene would qualify as a search incident to an arrest. The subsequent search of the defendant at the precinct which resulted in the recovery of the cellphones, however, does not.
For the reasons set forth above, the defendant's motion to suppress is granted.
This constitutes the Decision and Order of the court.