Opinion
XXX-XXX
04-14-2020
The PEOPLE of the State of New York, Plaintiff, v. T.B., Defendant.
District Attorney Eric Gonzalez, By: Julieann Yanez, Esquire, Evan Hannay, Esquire, Brooklyn Defender Services, Christopher Perks, Esquire, Senad Ramovic, Esquire
District Attorney Eric Gonzalez, By: Julieann Yanez, Esquire, Evan Hannay, Esquire, Brooklyn Defender Services, Christopher Perks, Esquire, Senad Ramovic, Esquire
T. B. is charged with, inter alia , Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [3] ). This Court conducted a combined Ingle/Dunaway/Mapp/Huntley hearing followed by oral arguments. The Court issued a Short Order entered on or about March 20, 2020, granting T. B.'s motion to suppress the weapon seized from the car and his statements; this Decision and Order follows.
Numbers preceded by "H" refer to the minutes of the hearing.
The People presented two witnesses: Police Officer Marc Whirl, a fifteen-year-veteran and Police Officer James Argila, an eleven-and one-half-year-veteran who are both currently assigned to the 75th Precinct. The Court finds Officer Argila to be credible and Officer Whirl credible to the extent noted.
In the approximate eleven-and-one-half years that Officer Argila has been on the force, he has been involved in "[a] lot" of car stops; "exponentially more than 250" (H: 62). He regularly "pulls people over for equipment malfunctions" and has issued summonses for equipment related violations in the past, including for inoperable taillights (H: 63-66). He pulls over "most" cars with equipment malfunctions but is "not going to literally stop every car. There's a lot of cars with malfunctions but [i]f [he] feel[s] like doing a car stop at that moment, if [he is] not doing anything else, if [he is] not surveilling anybody else, looking at something else or if [they] are not going someplace else, then [he] will do a car stop" (H: 68).
On September 10, 2019 at approximately 8:25 p.m., he was assigned to the Anticrime Unit and was patrolling as the operator of an unmarked car with Sergeant Radoncic and Officer Whirl, who was in the front passenger seat (H: 48). He "[c]onducted a car stop in the vicinity of Pennsylvania Avenue and Riverdale Avenue for a defective brake light" (H: 49). Specifically, while "the center brake light" was inoperable, the left and right rear brake lights were "fully functional" (H: 64-65; 31-32). He decided to pull the vehicle over (H: 65). According to Officer Whirl, he first noticed the center brake light defect when Officer Argila pointed it out to him while they were in the vicinity of New Lots and Pennsylvania Avenues (H: 19-20; 32). Once the vehicle pulled over, Officer Argila exited his car and approached the "[d]river's side" (H: 50). He observed "[t]he driver and a male sitting in the passenger rear seat;" the driver complied with his request "for his license, registration, and insurance" and informed him that the vehicle was a cab (H: 50-51). He had never seen the driver or passenger prior to that night. Nor had he received any radio transmissions or anonymous tips related to this specific car (H: 67).
Meanwhile, as Officer Whirl looked through the back window while approaching the car, he "could see the back right passenger bending towards the floorboard of the car" (H: 20-21). Although the brake light violation issue was with the driver, he focused on the passenger because of the latter's "movement before [he] got to the vehicle" (H: 34). As the officer was "first approaching the vehicle, [he] could not see what [the passenger] was doing in the vehicle; [he] just saw that [the passenger] moved toward the floor" (H: 35).
"The male then opened the door, and [Officer Whirl] told him to stay in the vehicle -- or attempted to step out, and [Officer Whirl] told him to stay in the vehicle" (H: 21; 33-34). He wanted the passenger, whom he identified in court as T. B., to stay in the vehicle "to contain everybody in the vehicle for their safety and [the safety of the officers]; he did not allow the passenger to leave the car" (H: 21). The passenger was not free to leave at that time (H: 43). As he continued to talk to T. B., the latter "seemed very nervous and kept fidgeting with a bag that was between his legs on the floorboard;" the bag was a "cloth" "shopping bag" (H: 21-22).
While Officer Whirl was speaking with T. B., Officer Argila spoke to the driver. He "believe[d]" Sergeant Radoncic "started off on the driver's side" and "[e]ventually, when [he] asked the male to step out of the car, Radoncic came around" (H: 22-23). He asked T. B. "[w]here he was going. He said he lived on Van Siclen. [Officer Whirl] asked him why he was getting out [where they stopped the vehicle]. He said he wasn't. He said he was just opening the door to try to explain to [Officer Whirl] ... [t]hat's why he opened the door and tried to step out" (H: 23-24). Officer Whirl's gun was not drawn during the conversation and T. B. remained in the back seat but "kept fidgeting with the bag" (H: 24). T. B. "seemed nervous and agitated" and the bag "was in between his legs on the floorboard" (id. ). T. B., however, did not attempt to "try to shove the bag under a seat" and the bag never left his legs (H: 35-36).
Since T. B. appeared "nervous and not being able to leave the bag alone," Officer Whirl directed him to step out of the vehicle (H: 24-25). T. B. "stepped out, tried to bring the bag with him, [Officer Whirl] told him to leave the bag in the car, and just patted him down to make sure he had nothing on him;" he was directed "[t]o the back of the vehicle with [Sgt. Radoncic]" (H: 25; 36). During the pat down T. B. "kept moving his hands and was very fidgety the whole time;" Officer Whirl told "him to keep his hands up" (id. ) After patting T. B. down, Officer Whirl instructed him to walk to the back of the vehicle; T. B. "took a few steps to the back" and then began "running southbound on Pennsylvania Avenue" (H: 26).
The body cam Video entered into evidence as Defense Exhibit A ("Officer Whirl") reveals that Officer Whirl exited his car at 20:19:26 and reached the passenger door at 20:19:32, six seconds later. After T. B. asked, "how u doing Sir," Officer Whirl directed him to "stay right there." From the time he spoke to Officer Whirl, T. B.'s body in the rear passenger seat was directly facing out onto the street and looking up to Officer Whirl. In response to a series of questions from Officer Whirl, T. B. indicated that he had been picked up in the 50's, specifically 56th Street; that he did not come from Flatbush; that he was on his way to East New York; that he lived at 511 Van Siclin; that he was not getting out at the location of the stop and had not asked the cab to drop him off there, but instead wanted to explain to the Officer that this was a cab service. Officer Whirl then indicated that was an illegal cab and asked T. B. to "do [him] a favor" and step out. The time was 20:20:12, forty seconds from the time he reached the cab. Officer Whirl continued, "Don't reach for that. Leave your bags for now." He then asked, "you don't have anything on you that you're not supposed to have?" and T. B. responded, "no Sir."
Another voice, presumably Sgt. Radoncic, said, "[w]e don't care about your weed if that's why you're nervous," to which T. B. responded, "no I don't have no weed." As Officer Whirl facedT. B., he frisked him and told him "don't reach in your pocket Bro." T. B. responded, "[a]ll right sir." In response to Officer Whirl's directive, "don't reach behind you," he stated, "no, no I don't," whereupon Officer Whirl stated, "Bro I understand but that's how misunderstandings happen; just follow his hand; misunderstandings is how people get hurt." As to T. B.'s movement during the frisk, the video itself with respect to the frisk reflects that while there was movement from T. B., the frisk was conducted without incident.
The Sergeant then asked, "have you ever been stopped for a gun before?" to which T. B. stated, "no not really." The Sergeant followed with "so you've never been arrested?" to which T.B. responded that he had been arrested as a child. In response to whether it was a juvenile arrest, T. B. responded "yes at like 16." After Officer Whirl directed him to go to the back, T.B. apparently turned and fled.
According to Officer Whirl, "a second or maybe two" later, he "[l]ooked in the bag that was still on the floorboard of the car;" "[a] gun" was inside of the bag (H: 26-27). "Sergeant Radoncic chased T. B. on foot [a]nd Officer Argila got back into [their] police car and chased T. B. using the police car" (H: 37). The video reflects that Officer Whirl picked up the bag and gave chase.
After recovering the gun, Officer Whirl "believe[d] [he] told the driver to stay there, picked up the bag, and began to run, and ran southbound on Pennsylvania" (H:27). The video confirms he told the driver "Sir don't go nowhere." The next time he saw T. B., the latter was handcuffed "on New Jersey, closer to Hegeman;" he gave the gun "to Officer Argila or placed it on the floorboard of [their] car" (H: 28-29). He had no further involvement in the matter as Officer Argila was the arresting officer. Officer Whirl did not use his radio to tell the other officers that he had found the gun prior to seeing T. B. apprehended in handcuffs (H: 38-39).
According to Officer Argila, his "partner and the male in the rear had engaged in conversation because he opened the door to -- looked like he was about to exit the vehicle. As [his] partner was done in frisking him, and they were bringing him to the back of the car, he took off running on foot" (H: 51). Officer Argila's "primary focus was the driver of the vehicle" when the other officers were engaging with the passenger (H: 67-68). Once he noticed the passenger running away, he "went back to the patrol car and followed the male in the vehicle [he] made a U-turn, went southbound, and then went eastbound on New Lots, and then went southbound on New Jersey" (H: 52). When he reached Hegeman and New Jersey Avenue, he believes "[he] got stuck behind an ice cream truck. And [he] exited the vehicle on foot, at which point [he] was following the male on foot, and [the male] tripped and fell, and then [he] was able to apprehend [the male]" (id. ). He instructed the male "[t]o put his hands behind his back, and [he] handcuffed him" and "placed the male under arrest" (id. ). The male "was in handcuffs and being detained, and then, when [he] spoke to Officer Whirl, he was -- it was decided that he was going to be brought back to the precinct and placed under arrest" (H: 52-53). A portion of his pursuit was captured by his body cam and was entered into evidence at Defense Exhibit A ("PO Argila").
The video reveals, inter alia , that upon reaching T. B., Officer Argila directed him to "roll over put [his] hands behind [his] back; say no further Boss." The Officer confirmed that he "got him" and directed T. B. to "stop moving around." In response to T. B.'s repeated inquiry, "What did I do sir?" Officer Argila told him to "stop moving around." When T. B. asked if he could pass him his cell phone so that he could speak to his wife, Officer Argila stated, "no, you're not speaking to anyone, you're under arrest." He further directed T. B. to "stop doing that" and "stop moving" when he sought to speak to his wife and stated, "you just resisted."
T. B. was taken to the 75th Precinct by unknown officers; Officer Argila was unaware if he had had any conversations with the police officer during the transport nor whether he was allowed to make phone calls or given anything to eat or drink (H: 71-72). At the 75th Precinct, Officer Whirl gave him a black "reusable shopping bag" that contained "a gun and an extra magazine" (H: 53). While pursuing T. B. in the vehicle and on foot, he did not know that a gun had been recovered from the cab (H: 69). He "secured [the bag] until [he] had to go into video debriefing with the detective, and [he] gave it to Officer Plumitallo to hold for when Evidence Collection Team came" (H: 53). He obtained pedigree information from T. B., told him "he had to speak to the detectives" and "went with him into the video debriefing," which is an interview room (H: 53-56).
Inside the interview room were two other NYPD employees who "worked in the [D]etective [S]quad" (hereinafter "the Detective[s]") (H: 54). He did not recall if their weapons were inside the room and no threats or promises were made to T. B. (H: 55-56). The interview room had "a small table, and there's two chairs for the two detectives or officers. There's a chair for [him] and then a chair for the defendant" (H: 56). The entire interaction in the room was recorded. He personally observed that T. B. was read Miranda warnings and was present to observe the entire interview. The entire interaction is depicted in People's Exhibit No.1.
Officer Argila was unsure "if they [were] detectives or officers" (H: 54).
Once the People played the video, it became apparent that portions of the video "blocks out" or "has feedback that makes it hard to hear at times" (H: 59-60). The People contend that they attempted to fix the video by trying multiple techniques but were unsuccessful.
II. CONCLUSIONS OF LAW
A. INGLE/DUNAWAY/MAPP
T. B. first contends that the stop was illegal as there was no violation of the Vehicle and Traffic Law ("VTL") and it was not "objectively reasonable" for the officers to stop the cab for a defective center brake light (H: 83). The People counter that it was "not unreasonable in this case for Officer Argila to see the defective middle brake light and then to put on his lights and sirens, or put his [sic] on his lights, as he testified, and then pull the car over" (H: 97). They also maintain that "if the search is good, but the stop and seizure are bad, the gun should not be suppressed. Only the statement. The gun does not flow from the arrest. It was recovered prior to the arrest. It was recovered immediately after the defendant fled from the vehicle" (H: 115). This Court disagrees.
"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred" ( People v. Robinson , 97 NY2d 341, 348-49 [2001], quoting Whren v. U. S. 517 US 806, 810 [1996] ; see also People v. Kluge, 180 AD3d 705 [2d Dept 2020] ; People v. Hamilton , 89 AD3d 1104 [2d Dept 2011], lv denied 18 NY3d 994 [2012] ; People v. John , 119 AD3d 709 [2d Dept], lv denied 24 NY3d 1003 [2014] ).
In relevant part, VTL § 375 (2) (a) (3) provides that "[e]very motor vehicle except a motorcycle, driven upon a public highway during the period from one-half hour after sunset to one-half hour before sunrise shall display if manufactured on or after January first, nineteen hundred fifty-two, at least two lighted lamps on the rear, one on each side, which lamps shall display a red light visible from the rear for a distance of at least one thousand feet" (emphasis added). Thus, the express language of the statute requires that only two, not all, of the brake lights on the rear of a vehicle display a red light. "Additionally, since 1986 (for cars) and 1994 (for other vehicles, including passenger vans) the National Highway Traffic Safety Administration has required new vehicles to have center high mounted stop lamps. 49 C.F.R. § 571.108. The New York vehicle code has been amended on an almost annual basis since 1986, and the legislature has chosen not to change § 375(40) to require three working brake lights, as the language of the statute makes clear" ( United States v. Mota , 155 FSupp3d 461, 474 [SDNY 2016] ).
VTL § 375 (40) (b) provides that "[e]very motor vehicle, except a motorcycle, operated or driven upon the public highways of the state, if manufactured on or after January first, nineteen hundred fifty-two, shall be equipped with at least two stop lamps, one on each side, each of which shall display a red to amber light visible at least five hundred feet from the rear of the vehicle when the brake of such vehicle is applied."
--------
Accordingly, here the defective rear center brake light did not violate VTL § 375 (2) (a) (3) since the testimony and body cam video confirm that the cab had a functioning light on the right and the left sides, respectively, on the rear of the vehicle. Indeed, the body cam video reflects very bright rear brake lights. Nonetheless, the People rely on People v. Guthrie , 25 NY3d 130 (2015) in support of their contention that the stop was lawful because the officers' mistake in believing that the vehicle was in violation of the Vehicle and Traffic Law was objectively reasonable.
In Guthrie , the officer stopped the defendant under the mistaken impression that she had illegally failed to stop at a stop sign "located at the edge of a supermarket parking lot in the Village of Newark, Wayne County, and defendant was exiting the lot onto a public street" ( id. at 132 ). The suppression court granted the defendant's motion on the grounds that the traffic stop was improper because the stop sign in question had not been registered in the Village Code and thus was not legally authorized under VTL § 1100(b). On appeal, the Court of Appeals held that "the relevant question before [the Court was] not whether the officer acted in good faith, but whether his belief that a traffic violation had occurred was objectively reasonable" ( id. at 134 ). The Court, however, cautioned that it was "not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the key requirement in Vehicle and Traffic Law§ 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code" ( id. at 136 ).
The Court reasoned "[i]t is undisputed that the stop sign was of regulation color, height and dimension; its only defect was that it was not properly registered. Under Vehicle and Traffic Law § 1110 (c), there is a presumption that ‘official traffic-control devices [that] are placed in a position approximately conforming to the requirements this chapter have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence.’ Although the stop sign here was ultimately established to be unregistered, the presumption is indicative of the legislature's intent that traffic control devices appearing to be proper be assumed valid, absent proof to the contrary. In our view, ‘[t]he officer was not chargeable with knowledge that the’ stop sign at issue was not registered under Newark Village Code § 140-46, which lists 130 registered stop signs in the village Nor was he required to verify that the stop sign was valid before making the traffic stop — rather, the stop was based on probable cause because the officer reasonably believed that he had observed defendant violate the Vehicle and Traffic Law" (id. at 140, quoting People v. Estrella , 10 NY3d 945, 946, cert. denied 555 US 1032 [2008] ).
Notably the Guthrie court relied on the Supreme Court's decision in Heien v. North Carolina , 574 US 54 (2014). There, a Sergeant patrolling at a location on the interstate observed that the driver of a car passing by looked "very stiff and nervous," so he followed the vehicle ( id. at 57 ). When the car abruptly stopped behind a slower vehicle, the Sergeant saw that only one brake light was functioning and pulled it over for what he believed to be a traffic violation. Heien was the owner of the car but not the driver. After the latter provided the requisite license and registration, the Sergeant issued a warning ticket. Meanwhile, the driver "appeared nervous, Heien remained lying down the entire time, and the two gave inconsistent answers about their destination" ( id. at 58 ). Subsequent to the men's consent to search, the police recovered cocaine in a duffel bag in the car.
The Supreme Court held:
Here we have little difficulty concluding that the officer's error of law was reasonable. Although the North Carolina statute at issue refers to "a stop lamp," suggesting the need for only a single working brake light, it also provides that "[t]he stop lamp may be incorporated into a unit with one or more other rear lamps." N.C. Gen.Stat. Ann. § 20-129(g) (emphasis added). The use of "other" suggests to the everyday reader of English that a "stop lamp" is a type of "rear lamp." And another subsection of the same provision requires that vehicles "have all originally equipped rear lamps or the equivalent in good working order," § 20—129(d), arguably indicating that if a vehicle has multiple "stop lamp[s]," all must be functional.
The North Carolina Court of Appeals concluded that the "rear lamps" discussed in subsection (d) do not include brake lights, but, given the "other," it would at least have been reasonable to think they did. Both the majority and the dissent in the North Carolina Supreme Court so concluded, and we agree. See 366 N.C., at 282—283, 737 S.E.2d, at 358—359 ; id., at 283, 737 S.E.2d, at 359 (Hudson, J., dissenting) (calling the Court of Appeals' decision "surprising"). This "stop lamp" provision, moreover, had never been previously construed by North Carolina's appellate courts. See id., at 283, 737 S.E.2d, at 359 (majority opinion). It was thus objectively reasonable for an officer in Sergeant Darisse's position to think that Heien's faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop
(id. at 67-68).
Unlike Guthrie and Heien , in this case the law in question is not ambiguous or reasonably subject to multiple interpretations. Nor would it call for an extensive knowledge of facts related to an arcane local law. Rather, it is clear that only two working rear brake lights are required under the law. Indeed, it was clear from the questioning captured on the body cam video when the officers assured T. B. that they were not interested in any weed; and inquired whether T. B. had previously been arrested for a gun or anything else, that they implicitly knew that the stop was improper.
Here, it would be objectively reasonable to expect that someone in the position of Officer Argila, in particular, who made the decision to stop the car, would know that the law required the existence of two functioning rear brake lights. Perhaps the People would stand on better ground if the defective light in question was on either the left or the right side, which one might ordinarily expect to be functional. But here these two ordinary rear brake lights were functional and indeed brightly lit. Yet when viewed through the lens of an officer in the position of an experienced officer who had made "exponentially over 250 car stops" which included taillight stops, coupled with his methodology of enforcement, inter alia , if he "feels like doing a car stop at that moment," it cannot be said that under the particular circumstances of this case, his decision to stop the car was objectively reasonable for anyone in his position ( People v. Driscoli , 145 AD3d 1349 [3d Dept 2016] [Traffic stop was illegal where it was based on the officer's observation of a temporary inspection sticker and it was officer's "general practice" to stop such vehicles to ensure that the sticker had not expired. Citing to Gutherie , the Court found that there was no probable cause for the defendant's arrest, reasoning "[t]he practice of stopping any vehicle with a temporary inspection sticker, without more, represents impermissible ‘idle curiosity’ as to the sticker's validity rather than the ‘reasonable suspicion’ of illegality needed to effect a traffic stop" under Ingle ( id. at 1350 ) ].
Accordingly, the stop in this case was illegal and any evidence obtained after the unlawful stop is suppressed as the fruits of the poisonous tree (see Wong Sun v. United States , 371 US 471 [1963] ). Nor was there reasonable suspicion for the pursuit and seizure of T. B., nor probable cause for his arrest or for the search of the car.
"Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment. This is true whether a person submits to the authority of the badge or whether he succumbs to force" ( People v. Cantor , 36 NY2d 106, 111 [1975], citing Terry v. Ohio , 392 US 1 [1968] ). To justify a seizure based on reasonable suspicion, "the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice" (id. , citing Wong Sun, supra 479).
"Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime" ( People v. Baksh , 113 AD3d 626, 629 [2d Dept], lv denied 23 NY3d 1034 [2014] ; People v. Page , 137 AD3d 817 [2d Dept], lv denied 27 NY3d 1137 [2016] ; People v. Thomas , 181 AD3d 831 [2d Dept 2020] ).
"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed by the suspected individual However, probable cause ‘does require more than mere suspicion’ and ‘conduct which is equally susceptible to innocent or culpable interpretation cannot give rise to probable cause’ " ( People v. Kamenev , 179 AD3d 837, 838 [2d Dept 2020] [internal citations omitted] ).
At the outset, prior to Officer Argila's chase of T. B., he had not observed him engage in any suspicious activity. Specifically, he confirmed that his attention had been directed to the driver of the car. Thus, he heard none of the questioning of his partners nor T. B.'s responses. Accordingly, all he knew when he pursued T.B. was that the latter ran from the scene of a car stop purportedly for a defective brake light, where there had been no radio transmissions of potential criminal activity involving either the car or its passengers. "However, flight alone or in conjunction with equivocal circumstances that might permit a request for information is insufficient to justify pursuit" ( People v. Brogdon , 8 AD3d 290, 292 [2d Dept 2004] Nor had he seen any of the purported "suspicious" behavior of T. B. "mov[ing] toward the floor" upon their approach.
Pursuant to the fellow officer rule , "even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer ‘acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest’ " ( People v. Hightower , 176 AD3d 865, 866 [2d Dept 2019] [internal citations omitted] ). Yet as Officer Whirl confirmed during his testimony, he never transmitted any of his observations or the substance of his conversation with T. B. over the radio; nor did he mention the seizure of the gun. Hence, the People cannot even rely on the fellow officer rule to support their claim regarding the propriety of the seizure here. Under the circumstances, there was neither reasonable suspicion for the pursuit nor probable cause for T. B.'s arrest.
Notably, the People urge that although no communications were sent over the radio regarding the recovery of the gun, Officer Argila had reasonable suspicion to chase and detain T. B. with handcuffs since he fled some distance from the officers (H: 108-115). To be sure, "[t]he nonarrest detention including transportation of a defendant to the crime scene [is] within the bounds of a lawful investigatory stop" (see People v. Hicks , 68 NY2d 234, 240 [1986] [pursuant to a radio run regarding a robbery committed at a factory by two 5'5" tall African American males, at 4:00 a.m., the police briefly detained and transported to the factory the defendant and his accomplice, who matched the description of the perpetrators and gave a highly questionable response about their prior whereabouts; some of the complainants then identified them] ).
Yet the question to be answered in this case is what exactly was Officer Argila detaining T. B. for? As explained above, there was nothing beyond his observation that T. B. had run away from the scene. Indeed, while an officer's subjective characterization of a seizure as an arrest is not binding, it is notable that the body cam video confirms that even Officer Argila believed that T. B. was under arrest when he refused T. B.'s request to call his wife ("no, you're not speaking to anyone, you're under arrest") and after directing him to stop moving, he stated, "you just resisted." Under the circumstances, and contrary to the People's argument, Officer Argila's actions constituted an arrest, not merely a brief detention of T. B.
Finally, even if the stop were proper, there was nothing in Officer Whirl's interaction with T. B. to provide the requisite reasonable suspicion, much less probable cause to search the vehicle. According to Officer Whirl, as he approached the car, he really was not able to see precisely what T. B. was doing except to the extent that he bent or "moved towards the floor." While Officer Whirl points to nervousness on the part of T. B., it hardly surprises that any person who has never been pulled over before, including an African American man such as T. B., might be nervous when the car in which he is a passenger is forcibly pulled over (indeed Sgt. Radoncic confirmed that T. B. had never been pulled over before). Next, there is nothing suspicious about the fact that a passenger would want to take his items from what ostensibly was a cab. T. B. then having followed Officer Whirl's directive to leave the bag in the vehicle, cannot now be deemed to have voluntarily abandoned it, as the People now suggest ( People v. Campbell , 245 AD2d 191, 193[1st Dept 1997] [People failed to overcome the presumption against abandonment where "[t]he police officer's testimony is equally susceptible to the interpretation that the bag fell to the ground by accident, without defendant's knowledge, requiring the conclusion that defendant retained a reasonable expectation of privacy in its contents"]; compare People v. Coleman , 125 AD3d 879 [2d Dept], lv denied 25 NY3d 1071 [2015] ; and People v. Rogers , 92 AD3d 903 [2d Dept], lv denied 19 NY3d 967 [2012] ).
Furthermore, the body cam video itself contradicts Officer Whirl's claim that T. B. was continuously fidgeting with the bag at his feet during their conversation. As set forth above, the video reveals that it took the officer six seconds to reach the car; once T. B. greeted him, Officer Whirl directed him to stay in the car and immediately started his questioning. During their entire 40-second interaction before he was directed to get out of the car, T. B. was facing Officer Whirl in such a way that simply does not comport with the assertion that he was "fidgeting" with the bag at his feet.
The video further reveals that T. B. was able to answer the myriad questions posed by the officers, including his initial pickup location; his address on Van Siclin; that he had not asked the cab to stop at the current location where the officers had pulled them over; and that he was trying to get out to explain to the police that this was a cab (which Officer Whirl confirmed was indeed a cab but an illegal one, meaning that it clearly looked like any other car). Notably it is this purported fidgeting with the bag and nervousness that Officer Whirl claimed was the basis for directing T. B. out of the car to frisk him. And to be sure, an officer has discretion to direct a passenger to exit a car and frisk that individual (see People v. Parker, 180 AD3d 1072 [2d Dept 2020] ["given the defendant's behavior, which included the defendant's initial refusal to exit the vehicle, his ‘looking around over his shoulders, both shoulders back and forth’ when asked to exit the vehicle, and then, upon exiting the vehicle, his attempts to shield his front and left side for the officer, the officer had a sufficient and reasonable basis to conduct a pat down of the defendant's waistband and to remove the gun found therein" ( id. at 1072-73 ) ] ). For the reasons set forth above, however, this case is not one of them ( People v. Sierra , 83 NY2d 928 [1994] [no reasonable suspicion where livery cab stopped for defective brake lights and back seat passenger grabbed at his waistband and "glance[d]over his shoulder" as he fled from the scene]; People v. White , 159 AD3d 741 [2d Dept 2018] [no founded suspicion that criminality was afoot to even ask defendant back seat passenger "what do you have," where defendant was "acting nervous, shaking his knees and legs up and down, and leaning forward in his seat with his hands in his lap and his arms tightly at his side"]; accord People v. Garcia , 20 NY3d 317 [2012] ).
Accordingly, all evidence seized subsequent to the unlawful stop, seizure and arrest of T. B. must be suppressed, including the firearm found in the bag and all statements.
B. HUNTLEY
T. B. relies on the fruit of the poisonous tree argument in seeking suppression of all of his statements to the police. In addition, he challenges his video statement on the grounds that he did not waive his rights under Miranda given his mental condition and his explicit response "no" when asked if he wished to speak to the police.
The People withdraw notice with respect to a statement made at the precinct to Officer Argila (H: 117). They maintain that the statement during the questioning at the car stop, including that he was going to 511 Van Siclin, "was a voluntary response because the defendant was the one that initiated the conversation. And, then, Officer Whirl, within his authority at that point in the car stop, was asking general questions, and it wasn't anything — it didn't overreach — his line of questioning was not overreaching. It was not threatening" (H: 116). As to the video statement, they counter that T. B. validly waived his rights under Miranda .
As set forth above, given the impropriety of the stop and the lack of reasonable suspicion in this case, T. B.'s statements are suppressed as the fruit of the poisonous tree. If these improprieties did not exist, the Court agrees that contrary to the defense's argument, T. B.'s initial reluctance to speak with the detectives would not require the suppression of his video statement ( People v. White , 63 AD2d 752 [3d Dept 1978] ).
"For a statement to be admissible, the People must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination" ( People v. Aveni , 100 AD3d 228, 236 [2d Dept 2012], app dismissed 22 NY3d 1114 [2014] [citations omitted] ). The People have the burden of proving voluntariness beyond a reasonable doubt (see People v. Guilford , 21 NY3d 205, 206 [2013] ).
" ‘Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation’ including the defendant's ‘age, experience, education, background, and intelligence, and whether he has the capacity to understand the warning given him, the nature of his Fifth Amendment rights, and the consequence of waiving those rights’ " ( People v. Cleverin, 140 AD3d 1080, 1081 [2d Dept 2016] [internal citations omitted]; see People v. Williams , 62 NY2d 285 [1984] ). Once the lawfulness of the police conduct is established, the burden shifts to defendant to show that he was not mentally competent to voluntarily and intelligently waive his rights ( People v. Love, 57 NY2d 998 [1982] ; People v. Hughes , 280 AD2d 694, 695 [3d Dept], lv denied 96 NY2d 801 [2001] ).
Here, a review of the video demonstrates that T. B. knowingly and voluntarily waived his Miranda rights. Although he initially said "no," that he did not wish to speak with the Detectives, it appears that his hesitation was borne solely out of his wish to "talk in private" and specifically, that he wanted to talk in a different room. The Detectives then told him that this was the only room which would be used for the interview. He ultimately declined the Detective's offer to re-read the Miranda warnings because he "under[stood]" them and stated "yes" when asked if he wished to speak with them. Moreover, the pauses in the video, with perhaps one exception which would not undermine the overall viability of the video, essentially consisted of a repeat of what was last said before the pause.
Furthermore, the defense has failed to establish that T. B. was not mentally competent to waive his rights. It is true that T. B. initially appears to be upset at the beginning of the interview; states that he has suffered from suicidal thoughts from the time he was a teenager; confirms that the reason he had purchased the gun was to harm himself because things had been on a downward spiral for him in the preceding six weeks; and when apologizing to Officer Argila for the chase, he mentioned that at that time he had not eaten for three days. Yet in viewing the entire video, where T. B. smokes two cigarettes, and is able to make various decisions, including declining to give a DNA sample, it cannot be said that his mental state was such as to render the video statement involuntary.
As to the initial encounter, to the extent that Officer Whirl and Sgt. Radoncic questioned T. B. about his prior arrest or encounters with the police, his prior whereabouts that day and his intended destination, as well as whether he had anything on him that he should not have, those questions "exceeded that which is permissible during a normal traffic stop" ( People v. Newsom , 155 AD3d 768 [2d Dept 2017], citing People v. Woods , 189 AD2d 838 [2d Dept 1993] ; People v. Mikel , 152 AD2d 603 [2d Dept 1989] ).
CONCLUSION
Based upon the foregoing, T. B.'s motion to suppress is granted and the weapon and his statements are suppressed.
This constitutes the Decision and Order of the Court.