Opinion
2015SU030026/27
02-25-2016
The People of the State of New York, Plaintiff, v. against Ronnie Rivera, Defendant.
Appearances of Counsel: For Defendant: Scott B. Zerner New York, New York For the People: Nicole L. Gallo For Thomas J. Spota, District Attorney of Suffolk County
Appearances of Counsel: For Defendant: Scott B. Zerner New York, New York For the People: Nicole L. Gallo For Thomas J. Spota, District Attorney of Suffolk County Karen M. Wilutis, J.
The defendant is charged with aggravated harassment in the second degree (PL § 240.30(1)) and criminal possession of a weapon in the fourth degree (PL § 265.01(4)). A Huntley hearing was held on January 21, 2016 to determine the admissibility at trial of evidence obtained against defendant. Specifically, defendant sought the suppression of an oral statement he made outside his residence immediately after he had been handcuffed and a written statement he made to the arresting officer at the police station. Pursuant to People v. Wachausen (33 Misc 3d 10 [Appellate Term, Ninth and Tenth Judicial Districts 2011]), the parties also addressed the legality of defendant's arrest.
The People called one witness, the arresting officer, Suffolk County Police Officer Joseph Russo. Officer Russo testified that he went to the defendant's residence accompanied by his supervisor and two other officers on the evening of the day the domestic incident underlying these prosecutions allegedly occurred. The police already had obtained the sworn statement of an affiant which provided reasonable cause to believe defendant had committed at least one of the crimes with which he has been charged, aggravated harassment in the second degree, by sending a text message to affiant while she was at work. In her statement, affiant also reported defendant's shotgun missing.
Upon arriving at the residence, Officer Russo testified he observed the defendant, whom he recognized from a photograph, outside the house. Defendant confirmed his identity to the satisfaction of the officer in response to a question, and the officer immediately thereafter took defendant into custody, placing him in handcuffs. Because the officer had reasonable cause to believe defendant had committed a crime, the apprehension and arrest of the defendant were lawful (see CPL § 140.10(1)(b); see also CPL § 70.10(2)).
Immediately upon handcuffing defendant, Officer Russo testified he asked the defendant where the shotgun was, and defendant responded that it was in the car. Defendant had not been given the Miranda warnings before the officer questioned him, and on this ground he seeks its suppression. The People take the position that the necessity to give the warnings was excused under the "public safety" exception to the Miranda ruling enunciated by the United States Supreme Court in New York v. Quarles, 467 US 649 [1984]).
The Quarles opinion itself provides an example of the type situation in which the "public safety" exception should be applied. A young woman had approached the vehicle of two police officers who were patrolling a neighborhood in the borough of Queens in New York City, telling them she had just been raped by a man carrying a gun, and he had just entered a specified supermarket. She also provided a description of the perpetrator. The officers drove her to the supermarket and entered. One officer spotted Quarles, who matched the description the woman had given. Quarles unsuccessfully attempted to flee the store. The officers apprehended him before he got out and conducted a frisk of his person, discovering that he was wearing a shoulder holster which was empty. After they handcuffed him, without providing the Miranda warnings, one officer asked him where the gun was, and he told them. The Court, stressing the volatile nature of the situation the officers faced and their immediate need to locate a gun which they had every reason to believe Quarles had just removed and discarded in the store, found that considerations of public safety excused the requirement for the giving of the Miranda warnings before the officers asked Quarles where the gun was.
The facts in Quarles reflect that the "public safety" exception is a limited exception to the Miranda requirement for pre-interrogation warnings when the subject is in custody. It is triggered when a danger to public safety appears to be present (see People v. Melvin, 188 AD2d 555 [2d Dept 1992]). However, as the Appellate Division of the Second Department has observed,
in any case involving the use of a weapon, there is always a possibility that the weapon, if not found on the person of the suspect, may be located somewhere in the vicinity and People of the State of New York v. Ronnie Rivera pose a potential danger to the public. If inquiry as to the location of weapons were permitted in every case without the police being required to first give Miranda warnings, the exception would overcome the rule and inquiries as to the location of weapons would never be subject to the Miranda rule ( Matter of John C., 130 AD2d 246,252 [1987]).Consequently, to ensure it remains an exception and does not erode the general rule requiring that Miranda warnings before the police question someone in custody, the "public safety" exception has been limited to circumstances in which the police are faced with a volatile situation requiring immediate action to preserve the public safety. The People's attempt to apply the "public safety" exception to the facts sub judice illustrates the concern of the Second Department that the "public safety" exception could overcome the Miranda rule.
The incident giving rise to these prosecutions occurred at approximately 11 o'clock in the morning, when the accused allegedly sent the text message. The incident was reported to the police several hours later, at approximately 5 o'clock that afternoon. The police immediately began their investigation, yet did not seek to apprehend defendant for approximately another three and a half to four hours. Before they went to defendant's residence, they had been advised by another member of the household, the same person who had reported the incident and given the sworn statement, that the remaining household members were elsewhere with her, and nothing reflects that anyone other than defendant was outside the residence from the time they arrived to the time they transported him to the precinct. Defendant, whom the police could observe was not in possession of the shotgun, offered no resistance when he was taken into custody.
On these facts, the possibility that the shotgun was somewhere in the vicinity of defendant does not provide a basis for the "public safety" exception. The police were not faced with a volatile situation requiring immediate action to preserve public safety. The Miranda warnings were required before questioning defendant once he had been taken into custody (compare People v. Melvin, 188 AD2d at 556 ["when the officer asked the defendant for the location of the gun, there still existed a volatile situation which called for immediate action"]; People v. Oquendo, 252 AD2d 312 [1st Dept 1999][defendant, who was reported to have pointed a gun at a police officer, had thrown his weapon into the snow while being chased by the police]). Since the warnings were not given, defendant's oral statement outside his house is suppressed, and to this extent defendant's motion is granted.
Turning to the written statement, the People have the burden of proving, beyond a reasonable doubt, that the statement given at the precinct was voluntarily made (see People v. Huntley, 15 NY2d 72[1965]. Officer Russo testified that Miranda warnings were given before the defendant was questioned. Between the time the police asked for the location of the shotgun and for his permission to take it, and the time the Miranda warnings were given more than an hour and a half later, the defendant was not subject to any additional police interrogation. The written statement, then, was not the product of continuous interrogation. His waiver of the right to remain silent and his written statement were knowingly and voluntarily made.
Thus, the Court finds after hearing the credible testimony of Officer Russo together with the facts and totality of the circumstances presented, that the defendant understood his rights and knowingly and voluntarily waived same. The defendant initialed and signed the Advice of Rights form and acknowledged in writing both his understanding of the rights and his willingness to speak with Officer Russo. All of these facts taken together indicate that the defendant's waiver was knowingly and voluntarily made.
Accordingly, the defendant's motion to suppress the written statement is denied(see People v. Hawthorne, 160 AD2d 727,728-729 [2d Dept 1990]).
Dated:J.D.C. New Court Date: Order to be published on line.