Opinion
4367/2003.
Decided December 15, 2004.
HONORABLE ROBERT T. JOHNSON, for the People of the State of New York, District Attorney.
MAUREEN GORMAN-PHELAN, ESQ. for Elizabeth Rodriguez DAVID C. CLARKE, ESQ. The Legal Aid Society JORDAN COPELAND, ESQ., Assistant District Attorney.
Defendant, Elizabeth Rodriguez, is charged with Promoting Prison Contraband in the First Degree (Penal Law § 205.25), and related offenses. At a combined Wade/Mapp/Dunaway ( see United State v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824) hearing, the People called one witness: New York City Correction Officer Roberta Hicks. Defendant did not call any witnesses. The Court finds the testimony of Officer Hicks to be credible. The motion to suppress is denied.
Factual Setting
The People's Case
On October 8, 2003, at a detention center on Rikers Island for inmates awaiting trial, Officer Hicks was operating "Visitor Waiting Area Magnetometer Two." Defendant, a visitor to the facility, was instructed, as are all visitors, to go behind a partition. Once there, Officer Hicks instructed her to turn her pockets inside out, which she did. Officer Hicks then instructed her to run her fingers around her waistband from the back to the front. When she did, a glassine envelope containing a white powdery substance fell out from her waistband on to the floor. Officer Hicks recovered the envelope and turned it over to her supervisor. Officer Hicks then brought Defendant to the registration area. Once there, she spoke to Correction Officer Jay Rodriguez, who was assigned as the arresting officer, and informed him of what she observed, including the fact that Defendant was the possessor of the white powdery substance. Officer Rodriguez field tested the substance, which tested positive as a controlled substance. As a result, Defendant was placed under arrest.
Arguments of Counsel
Defendant claims that Officer Hicks is not credible due to inconsistencies between her Grand Jury and hearing testimony. More specifically, the defense contends that in the Grand Jury, Officer Hicks stated that the object was a balloon rather than a glassine, and claimed that she, and not Defendant, went around Defendant's waistband with her finger. The defense further claims that there was no testimony regarding the identification procedure.
Regarding the identification issue, the People claim that Officer Hicks is the independent source for the identification and, therefore, there could not be any undue suggestiveness. In any event, the People contend that Officer Hicks indicated that she spoke to the arresting officer about what she observed, including what was possessed by Defendant. As to the Mapp, ( supra), issue, the People claim that because Defendant was a visitor to Rikers Island, she consented to be searched, and thus, waived her right to an expectation of privacy, and it is irrelevant whether Defendant or Officer Hicks conducted the search. Lastly, the People claim that probable cause was established for Defendant's arrest because Officer Hicks observed the contraband come out of her waistband and it was field tested and found to be a controlled substance.
Discussion
Initially, it is noted that any inconsistencies between Officer Hicks' Grand Jury and hearing testimony merely present the court, as the finder of fact, with a credibility issue. See People v. Jacobs, AD3d, 2004 WL 2793831 (1st Dept. December 7, 2004). In so doing, the Court had "ample opportunity to observe and evaluate [Officer Hicks'] demeanor while testifying" and does not find it to be so "contradictory on material points" so as to find her incredible. People v. Sanchez, 248 AD2d 306, 306-07 (1st Dept. 1998) (emphasis added), lv. denied, 92 NY2d 928 (1998), lv. denied, 92 NY2d 930 (1998). Rather, here, as in Sanchez, supra, at 307, "[p]otential inconsistencies were explored and resolved, or else were not sufficiently material as to detract from the overall candor of the witness's narrative testimony."
In any event, in the Dunaway, ( supra), portion of the hearing, the People have the initial burden of going forward to establish the legality of police conduct and that the arrest of a defendant is supported by probable cause. See People v. Parris, 83 NY2d 342 (1994); People v. Di Stefano, 38 NY2d 640 (1976). Probable cause exists where the facts and circumstances known to law enforcement would warrant a reasonable person to conclude, under all of the circumstances, that a defendant had committed or was committing a crime. See People v. Bellinger, 74 NY2d 633 (1989); People v. Vasquez, 162 AD2d 153 (1st Dept. 1990), lv. denied, 76 NY2d 867 (1990). Likewise, in the Mapp, ( supra), portion of the hearing, the People have the initial burden of establishing the lawfulness of the police conduct in acquiring evidence they seek to introduce at trial against a defendant. See People v. Berrios, 28 NY2d 361 (1971); People v. Baldwin, 25 NY2d 66 (1969). Once the People have made such a showing, a defendant then has the ultimate burden to establish by a preponderance of the evidence that the police conduct in acquiring that evidence was illegal. See Berrios, supra; Baldwin, supra.
In People v. Saunders, 140 Misc 2d 544, 549-53 (Sup Ct. Bronx Cty. 1988), this Court explained that:
A detention facility is recognized as a "unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence" ( Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 [1979]). . . . [T]he search of persons entering a jail facility is . . . to prevent contraband and other prohibited material from entering. . . . [T]he reasonableness of searches of persons at a correctional institution or a detention facility must turn upon the nature of the search and its level of intrusiveness. This must be balanced against the institution's legitimate need to maintain security and order. . . . In Bell v. Wolfish, ( supra), the United States Supreme Court considered the constitutionality of visual body searches of prisoners following contact visits with outsiders. It held that such searches were reasonable and did not violate the Fourth Amendment. . . . [T]he court [is not] unmindful both of the unique problems faced by prison administrators and the unquestionable risks to inmates, employees and the public alike from a breakdown of order in correctional institutions. . . . The notion that a prison setting affords the same guarantee of protection from warrantless police intrusion as the sanctity of the home and/or the privacies of life, on its face, is at odds with both common sense and reality.
The Court is aware that the Court of Appeals has declined to follow Bell, supra, on state law grounds as it relates to determining what constitutes punishment of pretrial detainees. See People v. LaValle, 3 NY3d 88 (2004); Cooper v. Morin, 49 NY2d 69 (1979).
Therefore, the inspection of Defendant's waistband, whether performed by Defendant herself or Officer Hicks, was reasonable and did not violate the Fourth Amendment.
In addition, it has been well recognized by the First Department that there is not only probable cause to arrest a defendant, but also that he or she abandons contraband when it is observed by an officer to be dropped to the ground. See People v. Bolido, 223 AD2d 467 (1st Dept. 1996) (holding that there was both probable cause to arrest the defendant and that he abandoned the contraband where a police officer observed him drop a bag containing drugs), lv. denied, 87 NY2d 1017 (1996); People v. Hughes, 211 AD2d 576 (1st Dept. 1995) (holding that no search took place and the police had probable cause to arrest the defendant where he dropped a bag of cocaine when the police directed a searchlight at him because "[t]he use of searchlights . . . does not constitute a search . . . [and] [a]ccordingly, defendant did not drop the bag of cocaine as a result of any illegal police conduct, and once discarded, defendant lost his right to object to the opening of the bag), lv. denied, 85 NY2d 974 (1995); People v. Gregg, 203 AD2d 188, 189 (1st Dept. 1994) ("[T]he cocaine recovered from the envelope and tin container dropped by defendant [which provided probable cause for defendant's arrest] was properly found to be abandoned by defendant."), lv. denied, 83 NY2d 911 (1994).
Here, as the Court credits Officer Hicks' testimony that Defendant herself placed her fingers around her waistband and then she observed the contraband fall to the ground, there was not only probable cause to arrest Defendant, but also, as the contraband was abandoned, Defendant lost her right to object to its recovery.
Regarding the Wade, ( supra), portion of the hearing, as recently opined by the Court of Appeals in People v. Jackson, 98 NY2d 555, 558-59 (2002):
[In-court] [i]dentification testimony . . . is properly admitted unless it is shown that [a pre-trial identification] procedure was unduly suggestive ( see People v. Chipp, 75 NY2d 327, 335 [1990], cert. denied, sub nom., Chipp v. New York, 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990])). Although the People have the initial burden of establishing the reasonableness of the police conduct in a pretrial identification procedure, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive. Without such a showing on the part of the defendant, there is neither a need for nor a burden on the People "to demonstrate that a source independent of the pretrial identification procedure exists for the witness's in-court identification" ( id.).
However, where there is an independent source for a witness's in-court identification, it is irrelevant whether a pretrial identification procedure was unduly suggestive. See People v. Howard, 87 NY2d 940 (1996). See also Chipp, supra at 335 ("Where suggestiveness is shown, it is the People's burden to demonstrate the existence of an independent source by clear and convincing evidence."). Indeed, a Wade, ( supra), hearing is "not necessary in the case of an identifying witness who is familiar with the perpetrator because that witness will naturally be `impervious to police suggestion.'" People v. Dixon, 85 NY2d 218, 224 (1995), quoting, People v. Rodriguez, 79 NY2d 445, 452 (1992). See also People v. Gissendanner, 48 NY2d 543, 552 (1979) ("In cases in which the defendant's identity is not in issue, or those in which the protagonists are know to one another, suggestiveness is not a concern.").
In People v. Williams, 85 NY2d 868, 869 (1995), the Court of Appeals, in holding that there was an independent source for an officer's identification of a defendant, noted that "[d]uration of the officer's opportunity to observe was only one of several facts [to be] considered by the lower court." Likewise, in People v. Ortiz, 292 AD2d 307 (1st Dept. 2002), lv. denied, 98 NY2d 700 (2002), the First Department held that "[v]iewing the hearing evidence as a whole and weighing all relevant facts, most notably the officer's ample opportunity to observe defendant during the commission of the crime, we conclude that the People established independent source by clear and convincing evidence." See also People v. Smith, 284 AD2d 190, 191 (1st Dept. 2001) ("The People established by clear and convincing evidence that there was an independent source for an in-court identification by an . . . officer, who carefully observed defendant, . . . [and] had a vivid, detailed recollection of defendant based on her own observations . . . independent of an identification that had been suppressed."), lv. denied, 96 NY2d 907 (2001).
Here, Officer Hicks' ample observation of Defendant during the incident, as well as her vivid, detailed recollection of her actions, provided an independent source for her initial identification of Defendant regardless of whether any unduly suggestive procedures were used.
ORDERED, that the defendant's motion to suppress her identification, evidence recovered, and arrest as lacking probable cause is denied.
The foregoing opinion constitutes the decision and opinion of the Court.