Opinion
04329
Decided March 4, 2005.
Michael E. Bongiorno, Esq., District Attorney of Rockland County, for plaintiff.
Ambrose Wotorson, Esq., Attorney for Defendant Remy.
William Reddy, Esq., Attorney for Defendant Williams.
Alan Mcgeorge, Esq., Attorney for Defendant Harvey.
Alan Phillips, Esq., Attorney for Defendant McGriff.
Pursuant to a prior order of the Court, a combined Dunaway/ Mapp/Huntley hearing was held. The Court heard testimony from two witnesses presented by the People. The defendants called a single witness and defendant Remy testified on her own behalf. The People called a single witness in rebuttal. Following the close of testimony, the defendants submitted written memoranda which the Court read and considered. The Court also heard oral argument from all parties.
The relevant findings of fact and conclusions of law are as follows:
On August 7, 2004 at about 3:40 a.m., Officer Beltempo, and his partner, Officer Hughes, of the Spring Valley Police Department were on patrol in the parking lot at 200 North Main Street. Officers Beltempo and Hughes, as members of the Street Crime Unit, were in plainclothes patrolling in an unmarked car. The parking lot was crowded at that time due to an event at the Carribean Village club, which adjoins the parking lot.
As they patrolled the lot, Officer Beltempo observed a white minivan parked by itself in the lot. Officer Beltempo recognized the van. According to Officer Beltempo, the van was always "of interest" to the department. Officer Beltempo slowly approached the van and slowly pulled alongside it so that the vehicles were passenger side by passenger side. Officer Beltempo described how, as he made a looping turn alongside the van, the headlights of his car illuminated the interior of the van such that he was able to see the front seat occupants of the van.
After the front of the van was illuminated and as the police car slowly passed the van, Officer Hughes immediately informed Officer Beltempo that he recognized the front seat passenger as Anthony Pugh. He further informed Officer Beltempo that Anthony Pugh had an active warrant. According to Officer Beltampo, Officer
Hughes was the department intelligence officer responsible for gathering and disseminating information for the department. In that capacity, Officer Hughes was informed about Pugh's warrant from Det. Lynch, his counterpart in the Ramapo Police Department.
Officer Beltempo turned his vehicle around and parked behind the van. Prior to approaching the van, the officers confirmed that Anthony Pugh had an active warrant. The officers also requested that a marked patrol car back them up.
Officer Hughes then approached the passenger side of the van to engage Pugh in conversation while Officer Beltempo approached the driver's window. When Officer Beltempo approached the driver's window, the window was opened approximately two inches. Officer Beltempo requested that the driver lower the window all the way. He then asked the driver, Linda Remy, to produce a license and registration.
While speaking to Remy, Officer Beltempo smelled the odor of burnt marijuana emanating from the vehicle. Officer Beltempo also saw a bottle of alcohol on the center console. Remy admitted drinking, however, she denied having smoked marijuana.
Officer Beltempo then returned to his vehicle and conducted a license check. Inside the car, Officer Hughes informed Officer Beltempo that, in addition to Pugh, Kenneth Harvey was inside the vehicle. According to Officer Hughes, Harvey was on parole and in violation of the conditions of his parole by exceeding his curfew. Starting with Pugh, the officers then called the occupants out of the van.
Once all five occupants were out of the van, the officers conducted a search of the van. Inside the van, a handgun was recovered from the floor in the front of the passenger compartment and a rifle was recovered from the back seat. Notably no marijuana or related paraphernalia was recovered.
The defendants were taken back to the station. At approximately 5:42 a.m., Det. Lopez, who had been working on a separate case, interviewed Tariq McGriff. Mr. McGriff was uncuffed and taken to Det. Loez' office. Det. Lopez read the defendant his Miranda warnings from a departmental form. After being apprised of his rights, Tariq McGriff made a statement to Det. Lopez that was eventually reduced to writing.
At the station, Duvar Ayers told Officer Beltempo that the charges were "bullshit" and that they wouldn't "stick." Additionally, Officer Beltempo had a conversation with Kenneth Harvey while he was processing him at the station. Officer Beltempo told Harvey that a lot of drug dealers weren't happy with him and his co-defendants. Harvey responded by stating that "I guess they had some real shit waiting for them this time." Officer Beltempo then informed Harvey that the drug dealers were forming an alliance and that they had big guns. Harvey then responded by asking "more guns than us." According to Officer Beltempo, this conversation involved a series of robberies in which Harvey and his co-defendant's were alleged to have robbed drug dealers.
At about 7:55 a.m., Officer Beltempo, doing work in the booking area, overheard a conversation between the defendants who were in nearby cells. The gist of the conversation had to do with getting their story straight and with who might take the blame.
In determining the legality of the police conduct the Court must first ascertain if the police conduct was "justified in the inception." People v. Debour, 40 NY2d 210, 215 (1976). Therefore, it must first be determined if the police action in approaching the van and engaging the front seat occupants in conversation was justified.
The Court of Appeals has established a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. Id. In measuring the lawfulness of police conduct, a balance must be struck between a citizen's right to personal liberty and the degree to which a seizure is necessary to advance the public interest in the detection of crime and the apprehension of criminals. The standard to be applied in weighing these interests is one of reasonableness. People v. Hollman, 79 NY2d 181 (1992).
In DeBour, the Court of Appeals did not establish rigid or inflexible legal framework by which to measure police conduct. Rather, its analysis provides guidelines for determining the reasonableness and therefore the constitutionality of police action in the context of the circumstances prevailing at the time that the police action was taken.
The credible evidence adduced at the hearing includes the fact that Officer Hughes recognized that Anthony Pugh was inside the vehicle and that he had an active warrant. The fact of the warrant was confirmed prior to approaching the vehicle. In such cases, a bench warrant is to be treated identically to an arrest warrant. C.P.L. § 530.70(2). See also People v. Williams, 2001 WL 1665469 (Sup.Ct. Kings Co. 2001); People v. Gaudio, 95 Misc 2d 47 (Sup.Ct. Bx. Co. 1978). Therefore, the police possessed probable cause to arrest Anthony Pugh.
When police possess an reasonable suspicion that an occupant of a vehicle is or has been engaged in criminality, they may stop a vehicle. People v. Sobotker, 43 NY2d 559 (1978). It follows a fortiori that the same level of intrusion is permissible when probable cause exists. Therefore, the police were justified in detaining the van in this case.
Once the car is validly stopped, the police may require the occupants to remain inside. See People v. Forbes, 283 AD2d 92 (2nd Dep't 2001). They may also order the occupants out of the car, even if it is merely a stop for V.T.L. infractions. People v. Robinson, 74 NY2d 773 (1989). Further, questioning of other occupants is permissible.
In People v. Jones, the Court held that a passenger may be questioned when the driver, who had been stopped for V.T.L. infractions, could not produce a valid license. People v. Jones, 8 AD3d 897 (3rd Dep't 2004); In People v. Valerio, the Court held that the police may question all occupants of an illegally parked vehicle. People v. Valerio, 274 AD2d 950 (4th Dep't 2000). In Valerio, the questioning was not limited to the nature of the illegality of the parking. The Valerio Court held that the police could question all occupants regarding pedigree, their point of origin and their destination. Id. If such a minimal intrusion is permitted of a mere passenger, certainly, a mere request for information may be made of the driver of a van occupied by a wanted person. Therefore, the police were justified in approaching Anthony Pugh and the driver, Linda Remy. Further, the police were justified in making a limited inquiry of Ms. Remy.
Additionally, the police had a sufficient alternate basis to approach the driver of the vehicle. The officers' approach of Remy was merely a Level I inquiry requiring a mere objective, credible reason not necessarily indicative of criminality. People v. Ocasio, 85 NY2d 982 (1995). See also People v. Valerio, 274 AD2d 950 (4th Dep't 2000). The fact that the van contained a wanted person, the fact that the van was "of interest" to police and that there was always information that the van contained contraband, the fact that the van was occupied by a parolee and the fact that Officer Hughes had some suspicion that one or more occupants of the van was involved in a series of robberies more than met the limited threshold.
Accordingly, the police were justified in approaching the van and engaging Linda Remy and Anthony Pugh in conversation.
Once the initial approach of the vehicle has been found to be justified, the Court must next determine if the search itself was proper. In this case, the People are relying on the statutory presumption. Therefore, in addition to the drivers, the passengers have standing to contest a search of the automobile. People v. Millan, 69 NY2d 514 (1987). The search in this case is predicated on the detection of the odor of marijuana inside the van. The credible evidence adduced establishes that Officer Beltempo did in fact detect the odor of marijuana. The officer's informed opinion, based upon his training and extensive experience, regarding the odor emanating from the van was sufficient basis to justify his search of the vehicle. People v. Chestnut, 36 NY2d 971 (1975) (affirming People v. Chestnut, 43 AD2d 260 (3rd Dep't 1974)); People v. Figueroa, 6 AD3d 720 (2nd Dep't 2004); People v. Turchio, 244 AD2d 366 (2nd Dep't 1997); People v. Martin, 169 AD2d 1006 (3rd Dep't 1991). See also People v. Darby, 263 AD2d 112 (1st Dep't 2000).
In advocating suppression, the defendants claim that the People failed to meet their burden of production. The law is clear that the People bear the initial burden of demonstrating the legality of the police conduct. See e.g., People v. Thomas, 291 AD2d 462 (2nd Dep't 2002). That burden requires the People to establish the legality of the police conduct in the first instance. Specifically, the defendants claim that, by failing to call Officer Hughes, the People failed to meet this initial burden.
C.P.L. § 710.60(4) specifically allows the introduction of hearsay evidence at a suppression hearing to establish any material fact. See also People v. Parris, 83 NY2d 342 (1994). In Parris, the Court of Appeals clearly held that "probable cause can be established . . . by hearsay information." Id. at 346. In fact, the Court held that double hearsay may be used to establish probable cause. Id. at 347. The single condition to be met is that the Aguilar-Spinelli test must be satisfied. Id. at 346. See also People v. Ketcham, 93 NY2d 416 (1999).
It is axiomatic that a police officer is a reliable informant. Id. Further, Officer Hughes' basis of knowledge may established either directly or circumstantially. That prong of the test was also met. Therefore, the People may rely on the testimony of Officer Beltempo, including the hearsay attributable to Officer Hughes to establish probable cause.
The recent First Department case, People v. Norman, provides a clear application of the above described principles. People v. Norman, 304 AD2d 405 (1st Dep't 2003). In Norman, a police officer discovered narcotics in plain view during a traffic stop. During the suppression hearing, a different police officer, who had not observed the narcotics when they were discovered, was the sole witness called by the People. The Court held that the testimony of the non-discovering officer was sufficient to meet the People's initial burden of production. Id. In holding the testimony sufficient, the Court specifically relied on the facts that "the witness was present at the scene, was aware of the events as they unfolded and provided circumstantial evidence from which the Court could conclude that the drugs were discovered in plain view." Id. In those critical aspects, the circumstances in Norman mirror those in the instant case.
The cases relied upon by defense counsel contain significant legal distinctions. The Court in U.S. v. Kiyuyung, 171 F.3d 78 (2nd Cir., 1999), relied upon the Federal Rules of Criminal Procedure and its attendant federal cases in reaching its decision. The clear language of C.P.L. § 710.60(4) and the jurisprudence of Parris and its progeny were therefore inapplicable.
Further, unlike the instant case, the testifying officer in Kiyuyung was never informed by the sending officer about the circumstances justifying the police actions. Id. at 84. The testifying officer in Kiyuyung was never told by the sending officer that the weapon at issue was discovered in plain view. Id. Therefore, the testifying officer could not establish directly or through hearsay that the police action was justified. In stark contrast, in the instant case, Officer Hughes provided Officer Beltempo with information establishing probable cause contemporaneously with their actions.
The case of People v. Roach, 265 AD2d 855 (4th Dep't 1999), also cited by the defendants, is clearly distinguishable. Unlike the instant case, the testifying officer in Roach had no first hand knowledge of the events that were the subject of his testimony. Id. at 856. In the instant case, unlike the situation in Roach,Officer Beltempo "was present at the scene, was aware of the events as they unfolded and provided circumstantial evidence from which the Court could conclude" that the police action was justified. People v. Norman, 304 AD2d 405 (1st Dep't 2003).
Therefore, the Court holds that the People met their initial burden of establishing the propriety of the police conduct. The burden therefore shifts to the defendants to establish that the police conduct was illegal. See People v. Arnau, 58 NY2d 27 (1982); People v. DiStefano, 38 NY2d 640 (1976); People v. Thomas, 291 AD2d 462 (2nd Dep't 2002).
The defendants do not contest the general legal principles justifying the search. Rather, they contest the accuracy and veracity of Officer Beltempo's testimony. Specifically, they assert that Officer Hughes could not have observed Anthony Pugh inside the van and that Officer Hughes did not possess sufficient familiarity with Anthony Pugh to have recognized him. Further, they assert that Officer Beltempo did not smell marijuana. In essence, counsel raises arguments based upon credibility. However, these arguments fall short of meeting the defendant's ultimate burden of persuasion in establishing the illegality of the police conduct. Id.
The defendants first claim is that Officer Hughes could not have seen Anthony Pugh inside the vehicle as the police car turned and passed by the van.
However, Officer Beltempo's testimony clearly establishes that such a viewing was in fact possible. Officer Beltempo described how he made a "swooping" turn. In fact the turn was made so close to the van that the front corners of the vehicles almost came in contact. As he turned alongside the van, the headlights of his car illuminated the interior of the van such that he was able to see the front seat occupants of the van. As the police car was turning left before reaching the van, Officer Hughes, in the passenger seat, would have had an even better view of the van's interior due to the more acute angle of incidence from his vantage point. Additionally, the vehicles passed each other passenger side by passenger side. Accordingly, based upon the testimony, Officer Hughes would have passed within four feet of Anthony Pugh's window. Further, Officer Beltempo testified that the parking lot itself was illuminated. Therefore, the Court does not find that the testimony in this regard was incredible.
Secondly, the defendants maintain that Officer Hughes could not have recognized Anthony Pugh because Anthony Pugh was not a resident of Spring Valley. However, this assertion is weakened considerably by the fact that Anthony Pugh admittedly had frequented Spring Valley in the weeks that preceded his arrest. Further, during his time in Rockland, Anthony Pugh did have contact with the police. That contact involved his questioning on a matter of certain importance, a recent homicide. In addition, as intelligence officer from the department, Officer Hughes certainly would be in a particularly good position to be aware of information concerning active warrants and homicide investigations in his jurisdiction.
Finally, Officer's Hughes' claim of recognizing Pugh as the vehicles passed is bolstered considerably in that Officer Hughes was correct that it was in fact Anthony Pugh in the vehicle and that Anthony Pugh did have a warrant. In fact, the officer's testimony that it was Pugh who was called out of the van first clearly supports the inference that the police were aware of the warrant.
Finally, the defendants contend that Officer Beltempo did not actually smell marijuana. Instead, they claim this was merely an excuse to justify further investigation. The defendants' claims are based on the fact that Det. Lopez did not smell marijuana when she interviewed two of the vehicle's occupants several hours after the event. Further, the defendants contend that no other person smelled marijuana because Officer Beltempo was never made aware of such fact. However, such speculation is far from conclusive. Even if the Court were to so speculate, there is no way for the Court to gauge the relative olfactory prowess of the other officers and no way for the Court to determine the rate of dissipation of the odor.
Officer Beltempo's actions were consistent with his having smelled marijuana. Further, his questioning of Linda Remy on the subject when he first approached the van, evidenced his having smelled marijuana.
The defendants' claims of post hoc justification are pure speculation. The Court must base its decision on the evidence before it rather than a proposed scenario unsupported by the record.
Based on the foregoing, the Court holds that the police were justified in approaching the vehicle and in eventually searching it. Accordingly, the Dunaway/ Mapp branch of defendants' motions are denied.
Linda Remy's statement to Officer Beltempo made when he approached the van are admissible. Her statements were not the product of custodial interrogation. Rather they were responsive to the officer's permissible on the scene inquiry. E.g., People v. McAleavey, 159 AD2d 646 (2nd Dep't 1990).
Duvar Ayer's statement to Officer Beltempo is also admissible as it was spontaneously made. The test to be employed for determining if a statement was spontaneously made is "whether the police conduct should reasonably anticipated to evoke a statement from the defendant and whether it can be said under the circumstances that the inculpatory statement was `made without apparent external cause.'" People v. Rivers, 56 NY2d 476, 480 (1982) (quoting People v. Lynes).
The defendant's statement was not made in response to any question by Officer Beltempo. The officer's actions cannot be said to have been likely to have induced an inculpatory response or have encouraged defendant to make an inculpatory statement . People v. Rivers, 56 NY2d 476 (1982). See also People v. Harrison, 251 AD2d 681 (2nd Dep't 1988). Based upon these circumstances it is clear that the statement was truly spontaneous.
However, the statement made by Kenneth Harvey to officer Beltempo must be suppressed. In Rhode Island v. Innis, 446 U.S. 291 (1980), the Supreme Court explained that interrogation for Miranda purposes means words or actions of the police that "the police should know are reasonably likely to elicit an incriminating response form the suspect." Id. At 301 (footnote omitted). The Court explained that "[b]y `incriminating response' we refer to any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial."id. At 301 n. 5.Unlike the situation with Ayers, the officer's actions are likely to have induced an inculpatory response or have encouraged defendant to make an inculpatory statement. Officer Beltempo's questions to Harvey clearly presented a likelihood that the defendant would make an inculpatory statement. People v. Thrower, 175 AD2d 818 (2nd Dep't 1991).
The conversation between the defendants, over heard by Officer Beltempo, is admissible. People v. Eldridge, 213 AD2d 667 (2nd Dep't 1995); People v. Murphy, 163 AD2d 425 (2nd Dep't 1990). "Communications made in the presence of third parties which are not the product of police activity are not subject to suppression." Id. The overheard statements were not "attributable to police suggestion, prompting, or other misconduct." People v. Eldridge, 213 AD2d 667, 668 (2nd Dep't 1995).
Finally, Tariq McGriff's statement to Det. Lopez is admissible. The defendant was adequately apprised of his Miranda rights prior to making the statement. See generally, People v. Hutchinson, 59 NY2d 923 (1983); People v. Burton, 191 AD2d 703 (2nd Dep't 1993). The evidence further demonstrates that the defendant knowingly and voluntarily waived his rights. People v. Sirno, 76 NY2d 967 (1990); People v. Davis, 55 NY2d 731 (1981). The fact that the defendant spoke to police after having been informed of his rights is sufficient evidence that the defendant tacitly waived his rights. Id.
Therefore, with the exception of Kenneth Harvey's statement to Officer Beltempo in the booking room, the motions to suppress statements are denied.
This Decision shall constitute the Order of the Court.