Opinion
2010NA017842.
Decided August 3, 2011.
Hon. Kathleen Rice, Nassau County District Attorney.
Attorney for Defendant: Cornell Bouse, Esq.
The Defendant is charged with Promoting prison contraband in the second degree, in violation of Penal Law § 205.20.
On June 23, 2011, upon the parties' consent, the court conducted a Mapp/Huntley hearing. At such a hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses , 32 AD3d 866 , 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 N.Y.S.2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977).
Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684 (1961); People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965)
The People attempt to meet their burden through the testimony of Correction Officer Christopher Marino. The Defendant did not call any witnesses. After listening to and observing Officer Marino's demeanor, the court finds his testimony to be credible and makes the following findings of fact:
Officer Marino has been employed by the Nassau County Sheriff's Department for twenty three (23) years; for fifteen (15) of which he has been a K-9 officer. Officer Marino's duties as a K-9 officer include searching the visiting areas at the Nassau County Correctional Center (the "Correctional Center"), along with the entirety of the center. In this capacity Officer Marino works with a dog specially trained to search for and detect the source of narcotics.
At the Correctional Center there are signs posted "throughout the facility, on the grounds, in the waiting areas, and inside the facility, in the registration area, the lobby, the visiting room itself[,]" ( Hearing Transcript 6/23/11, p. 7 l. 1-4) indicating that "all persons entering the facility are subject to search by K-9 or staff for any contraband." ( Hearing Transcript 6/23/11, p. 7 l. 6-7)
Officer Marino, who has worked with a number of dogs over the years, was originally trained by Canadian Customs, along with his first dog, in a ten (10) week course, with periodic training throughout the year. With the retirement and replacement of each new dog, Officer Marino would return to Canadian Customs, along with his new dog, for a five week training course. Officer Marino and the dogs would receive their training together. Specifically, the dogs were trained to distinguish different odors of narcotics, including marijuana, cocaine, heroin, opium and methamphetamine. The dogs were trained to sit if they detect the odor and source of such substances. If the dog detects the odor, but cannot locate the source of the substance, he/she will track to the initial area, become excited, jump or stand on his/her hind legs. Following their training, the dogs are certified by the State of New York as police narcotic detection dogs.
On July 8, 2010, at approximately 12:45 p.m. Officer Marino was working in "832 visiting area" at the Correctional Center with his dog "Spirit" who had received the aforesaid training. At that time, Officer Marino and Spirit were working in the "sallyport" area, which is the gated space separating the lobby, where the visitors register, place their ID on a pegboard and place their belongings into a locker for which they have been provided a key, and the actual visiting area. When the gate leading into the sallyport opens, visitors walk through a magnetometer, put their shoes on an x-ray machine belt, show a stamp they received at the registration window and a gate closes behind them. Once cleared, another gate opens, letting the visitors into the visiting area.
While working in the sallyport, Officer Marino saw the Defendant, whom he has previously encountered, enter the sallyport. At that point, Spirit approached the Defendant and became excited, indicating that the Defendant had something high on her body or in her mouth. At that same time, Officer Marino observed the Defendant to appear nervous; her eyes got big and she appeared tense. While, according to Officer Marino, Spirit could have been reacting to cocaine residue on the Defendant's upper body, he believed the Defendant had something in her mouth, due to the fact that Spirit kept detecting the odor of a illegal substance as the Defendant exhaled and then lost the scent each time the Defendant inhaled and held her breath. Officer Marino approached the Defendant and asked her to open her mouth. The Defendant did so; and, Officer Marino observed that the Defendant's tongue was arched, covering something under her tongue. Officer Marino believed the concealed item to be narcotics based upon Spirits reaction. Office Marino told the Defendant to lift her tongue. The Defendant refused, closed her mouth and turned away. Officer Marino observed the Defendant's throat move up and down, leading him to believe that the Defendant swallowed the item in her mouth. Officer Marino then asked the Defendant what she swallowed and the Defendant told him, in sum and substance, to go fuck himself, she didn't swallow anything. The Defendant was then escorted out of the sallyport back into the lobby area, where she was detained.
In the lobby Officer Marino asked the Defendant if she wanted medical attention; the Defendant declined. Officer Marino then asked the Defendant to sign a medical refusal form, which the Defendant refused, stating, alternately, "I didn't swallow anything. I swallowed gum." Officer Marino then took the key given to the Defendant and retrieved the Defendant's belongings from the locker provided to her. Officer Marino told the Defendant that he was going to search her belongings and asked her if there was anything sharp or anything that was going to harm him when he reached into her pocketbook. The Defendant advised Officer Marino that she had a steak knife in her pocketbook. Officer Marino then searched the Defendant's pocketbook and found, inter alia, a steak knife. Shortly thereafter, the Defendant was arrested for promoting prison contraband.
DEFENDANT'S STATEMENTS
The Defendant argues that immediately upon being confronted by Officer Marino she was in custody and should have been advised of her Miranda rights. Having failed to advise her of such rights at that time, the Defendant suggests her statements which followed should be suppressed.
In opposition the People argue that at no time prior to her arrest was the Defendant in custody, triggering the application of her Miranda rights. The People further argue that whether in custody or not, the Defendant was not subjected to interrogation and that Officer Marino's inquiry as to whether there was anything sharp in her pocketbook was a reasonable inquiry necessary to protect the officer.
There are three (3) sets of statements allegedly made by the Defendant which are the subject of this hearing. The first is the Defendant's denial that she had anything in her mouth or that she swallowed anything immediately following Spirit having alerted Officer Marino that there was the odor of a controlled substance emanating from the Defendant when in the sallyport. The second is the Defendant's declination to sign a medical refusal form and averment that she had swallowed gum made while in the lobby. The third is the Defendant's statement that there was a knife in her pocketbook when asked by Officer Marino if there was anything in the bag which could injure him. While the People's notice served pursuant to CPL § 710.30 contains a fourth statement, wherein the Defendant allegedly indicated that she carried the knife for protection because she was mugged, the People acknowledge that there was no testimony adduced at the hearing regarding such a statement and that it should be suppressed.
It is well established that "both the elements of police custody' and police interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda. The fact that there may have been police questioning is not controlling." People v. Huffman, 41 NY2d 29, 33, 390 N.Y.S.2d 843, 846 (1976); See also: People v. Berg, 92 NY2d 701, 685 N.Y.S.2d 906 (1999) A determination of whether or not an individual was subjected to custodial interrogation will first turn on "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v. Yukl, 25 NY2d 585, 589, 307 N.Y.S.2d 857 (1969); See also: People v. Paulman , 5 NY3d 122 , 800 N.Y.S.2d 96 (2005); People v. Morales , 25 AD3d 624 , 807 N.Y.S.2d 142 (2nd Dept. 2006) In making this determination the court should look to such factors as the amount of time spent with the police, whether an individual was handcuffed or restrained in any way, whether there was any questioning, the location of the questioning, was the atmosphere unduly coercive, the individual's degree of cooperation, whether the individual was apprised of his or her rights, and whether the nature of the questioning was investigatory or accusatory, See: People v. Macklin, 202 AD2d 445, 608 N.Y.S.2d 509 (2nd Dept. 1994) lv. den. 83 NY2d 912, 614 N.Y.S.2d 394 (1994); People v. Warren, 300 AD2d 692, 750 N.Y.S.2d 670 (3rd Dept. 2002); People v. Parsad, 243 AD2d 510, 662 N.Y.S.2d 835 (2nd Dept. 1997) Weighing these factors, the court finds that the Defendant was neither in custody nor interrogated at the time the statements here in question were allegedly made.
At the time of her first alleged statements, the Defendant had walked into the sallyport on her way to visit an inmate, as she had apparently done on a number of prior occasions. Following this established protocol for inmate visits, something being done by all other visitors at the same time, would not have lead a reasonable person, innocent of a crime, to believe that they were in custody. Once Spirit alerted Office Marino that contraband was detected upon the Defendant's person, Officer Marino's question to the Defendant, concerning what she swallowed, was a reasonable and limited inquiry seeking explanatory information based upon a founded suspicion that criminal activity was afoot. See: People v. De Bour, 40 NY2d 210, 386 N.Y.S.2d 375, (1976) The "question was designed to clarify the nature of the situation confronted," People v. Johnson, 64 AD2d 907, 909, 408 N.Y.S.2d 519, 523 (2nd Dept. 1978) aff'd 48 NY2d 674, 421 N.Y.S.2d 881, (1979) it was not designed to elicit incriminating information. Moreover, Spirit's positive detection of a controlled substance upon the Defendant provided Officer Marino with probable cause to believe that the Defendant had "unlawfully introduced . . . dangerous contraband into a detention facility," in violation of Penal Law § 205.20(1), See: People v. Offen, 78 NY2d 1089, 578 N.Y.S.2d 121 (1991); People v. Gathogo, 276 AD2d 925, 715 N.Y.S.2d 459 (3rd Dept. 2000) lv. den. 96 NY2d 734, 722 N.Y.S.2d 801 (2001); People v. Martinez , 39 AD3d 1246, 834 N.Y.S.2d 599 (4th Dept. 2007) lv. den. 9 NY3d 878, 842 N.Y.S.2d 790 (2007), which would have permitted a greater intrusion upon the Defendant than the limited inquiry posed by Officer Marino. See: People v. De Bour, supra.
The Defendant's second and third sets of alleged statements were similarly non-custodial. As indicated hereinabove, whether or not Officer Marino intended to detain the Defendant when these statements were made is not determinative of whether or not she was in custody, particularly since there is no indication this intention was ever conveyed to the Defendant. See: People v. Johnson, 91 AD2d 327, 458 N.Y.S.2d 775 (4th Dept. 1983) aff'd 61 NY2d 932, 474 N.Y.S.2d 967 (1984) The testimony was clear that the encounter between Officer Marino and the Defendant was brief; the Defendant was neither seized nor restrained in any fashion; their conversation occurred in the public Sheriff's lobby; the surrounding atmosphere was not coercive; and, perhaps most significantly, Officer Marino's questions were neither investigatory nor accusatory in nature. See: People v. Bailey, 140 AD2d 356, 527 N.Y.S.2d 845 (2nd Dept. 1988); People v. Brown, 295 AD2d 442, 743 N.Y.S.2d 554 (2nd Dept. 2002) The first question in the lobby was posed simply to determine whether or not the Defendant would sign a medical refusal form. The second question in the lobby concerned whether there was anything sharp in the pocketbook recovered which could injure Officer Marino. This question was asked for "the sole purpose of insuring his own safety (citations omitted)." People v. Maxwell , 22 AD3d 314 , 315, 804 N.Y.S.2d 290 (1st Dept. 2005) lv. den. 6 NY3d 815, 812 N.Y.S.2d 455 (2006) and did not have to be preceded by Miranda warnings. See: People v. Martinez , 53 AD3d 508 , 860 N.Y.S.2d 632 (2nd Dept. 2008) lv. den. 11 NY3d 791 (2008); People v. Jenkins, 208 AD2d 459, 617 N.Y.S.2d 310 (1st Dept. 1994) lv. den. 85 NY2d 863, 624 N.Y.S.2d 382 (1995); People v. Burgos, 255 AD2d 199, 681 N.Y.S.2d 239 (1st Dept. 1998) lv. den. 93 NY2d 851, 688 N.Y.S.2d 498 (1999)
Accordingly, the Defendant's alleged statements shall be admissible at the time of trial, save the one statement which the People agreed shall be suppressed.
RECOVERY OF KNIFE
Regarding the knife recovered by Officer Marino, the Defendant argues that there was no testimony connecting her to the pocketbook from which the knife was recovered or the locker from which the pocketbook was removed. Alternatively, the Defendant argues that the knife was not discovered in plain view nor was there any consent, express or implied, given for the search of the pocketbook.
Addressing the recovery of the knife, the People argue that if, as the Defendant suggests, there is nothing connecting the Defendant to the recovered pocketbook and knife, then the Defendant does not have standing to contest the seizure of same. Alternatively, the People argue that Spirit's detection of a controlled substance on the Defendant provided reasonable cause to believe the Defendant possessed contraband, permitting a search of the Defendant and her belongings. Additionally, the People argue that visitors to the Correctional Center have a lesser expectation of privacy, particularly in the presence of signs warning that all visitors are subject to search. "At a suppression hearing, a defendant has the burden of establishing standing by demonstrating a personal legitimate expectation of privacy. (citations omitted)." People v. Whitfield, 81 NY2d 904, 906, 597 N.Y.S.2d 641, 642 (1993); See also: People v. Thomas, 246 AD2d 611, 667 N.Y.S.2d 294 (2nd Dept. 1998) lv. den. 91 NY2d 1013, 676 N.Y.S.2d 141 (1998) If, as the Defendant suggests, there was no proof at this hearing demonstrating that the searched pocketbook belonged to the Defendant, then she has no reason to complain about the search of same; and, the knife recovered therein will not be suppressed.
Standing, however, may be demonstrated either "through [Defendant's] own evidence or by relying on evidence presented by the People (citations omitted)." People v. Lacey , 66 AD3d 704 , 705, 887 N.Y.S.2d 158, 160 (2nd Dept. 2009); See also: People v. Samuel , 42 AD3d 551 , 839 N.Y.S.2d 806 (2nd Dept. 2007) The latter is the case in the matter before this court.
Officer Marino clearly testified that when visitors to the Correctional Center, such as the Defendant, register "[t]hey're give a key[;]" ( Hearing Transcript 6/23/11, p. 13 l. 9) and "place their belongings in a locker which is assigned[.]" ( Hearing Transcript 6/23/11, p. 13 l.11-12) Officer Marino further testified that after the Defendant was removed from the sallyport and returned to the lobby, he "had her key [and] got her belongings out of her locker." ( Hearing Transcript 6/23/11, p. 37 l. 16-17) Such testimony makes clear that it was the Defendant's pocketbook which Officer Marino retrieved and searched. The question remains, was such search proper?
"The Fourth Amendment protects all citizens from unreasonable government intrusions into legitimate expectations of privacy' ( United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538)." People v. Mercado, 68 NY2d 874, 875, 508 N.Y.S.2d 419, 421 (1986) cert. den. 479 U.S. 1095, 107 S.Ct. 1313, 94 Ed.2d 166 (1987) As noted, this proscription is not against all searches, just those which are unreasonable. See: People v. Peters, 18 NY2d 238, 273 N.Y.S.2d 217 (1966); Matter of Ronald B., 61 AD2d 204, 401 N.Y.S.2d 544 (2nd Dept. 1978)
It has been recognized that whether or not a search is reasonable requires a two step analysis; first, does an individual have an actual expectation of privacy; second, does society recognize this expectation of privacy as reasonable. See: Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967) [Justice Harlan concurring]; People v. Doe, 84 AD2d 182, 445 N.Y.S.2d 768 (1981) Factors to be considered in assessing the reasonableness of a search are, "1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied, in light of his knowledge and experience. . . ." People v Howard, 50 NY2d 583, 589, 430 N.Y.S.2d 578, 583 (1980), cert. den. 449 U.S. 1023 (1980); See also: People v. Alba, 81 AD2d 345, 440 N.Y.S.2d 230 (1st Dept. 1981) app. dism. 56 NY2d 642, 450 N.Y.S.2d 787 (1982)
In applying these factors to the matter sub judice, the court recognizes that "[a] detention facility is 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 (1979) As such, "the 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." People v. Saunders, 140 Misc 2d 544, 550, 531 N.Y.S.2d 897, 991 (S.C. Bronx Co. 1988); See also: People v. Rodriguez, 6 Misc 3d 1023, 800 N.Y.S.2d 354 (S.C. Bronx Co. 2004)
This court finds, as was recognized in People v. Saunders, supra. at 552, 531 N.Y.S.2d 897, 992 (S.C. Bronx Co. 1988), that "the penological requisite for maintaining and insuring internal security therein [is] undoubtedly a legitimate interest of the government[.]" At the same time, "one's expectation of privacy while within the confines or even upon the perimeter of a correctional institution is less than such expectation would be outside the institution." People v. Saunders, id. at 551, 531 N.Y.S.2d 897, 992 (S.C. Bronx Co. 1988); See also: People v. Rodriguez, supra. Moreover, by entering the correctional center, where there were signs posted "throughout the facility, on the grounds, in the waiting areas, and inside the facility, in the registration area, the lobby, the visiting room itself[, indicating that] all persons entering the facility are subject to search by K-9 or staff for any contraband," ( Hearing Transcript 6/23/11, p. 7 l. 1-7) her reasonable, albeit reduced, expectation of privacy notwithstanding, the Defendant consented to the search of her pocketbook. See: United States v. Sihler, 562 F.2d 349 (5th Cir. 1977); People v. Alba, supra.;
Under all of these circumstances, the court does not find that the search of the Defendant's pocketbook was unreasonable. Accordingly, the knife recovered at the time of the search shall not be suppressed for use at trial.
Based upon all of the foregoing, that branch the Defendant's application seeking to suppress her statements, is granted to the limited extent of suppressing the fourth statement contained in the People's notice served pursuant to CPL § 710.30, wherein the Defendant allegedly indicated that she carried the knife for protection because she was mugged, and is denied in all other respects. That branch the Defendant's application seeking to suppress the knife recovered by Officer Marino is denied.
This constitutes the decision and order of the court.