Opinion
2209/04.
Decided January 31, 2006.
For the People, Robert Morgenthau, District Attorney New York County by Harvey Rosen, Esq. and James Lin. Esq., Fred Sosinsky, Esq., New York, NY, For defendant Tyrell.
Barry Weinstein, Esq., Goldstein and Weinstein, Bronx, NY, For defendant R.
Defendant Tyrell moves to suppress statements that he gave to the police, physical evidence recovered from his apartment, as well as identification testimony of a witness who identified him from a photo array. Defendant R. moves to suppress statements.
I presided over a suppression hearing pursuant to defendants' applications to suppress evidence. Six witnesses, all current or retired members of the New York City Police Department, testified on behalf of the People. The defendants called no witnesses. Defendants urge me to reject certain material portions of the testimony as incredible and untruthful. They particularly, but not exclusively, focus on the testimony of Detective Jean Benoit, and the contradictions between the testimony in general and the information contained in the paperwork prepared by the police during the investigation. Benoit repeatedly contradicted himself on significant points and was forced to retract earlier statements on several occasions. There were instances in which his contradictions were brought to his attention and he was at a loss to satisfactorily explain them. Several of his explanations for his and his fellow detectives' actions fly in the face of common sense. Nevertheless, although I do not find his testimony to be completely reliable, I reject defendant's contention that he and his fellow detectives were deliberately untruthful. Benoit was profoundly confused as to certain facts, but I do not believe that he was consciously lying. His confusion, whatever its other causes, was undoubtably exacerbated by the fact that the paperwork that he and his fellow officers prepared during and following the investigation, and which he likely reviewed in preparing for the hearing, was riddled with misinformation and mistakes. Anyone relying upon these documents to refresh his recollection of the events would necessarily become befuddled. Some of the documents contain information that cannot possibly be accurate if the testimony of the witnesses is to be believed. I do not credit defendants' argument that these contradictions indicate that the witnesses tailored their testimony. The explanation for the errors that appear in the paperwork lies in the fact that the documents were prepared quickly, in a slipshod manner, four days after the events to which they refer. To infer otherwise would be to accept what is clearly impossible, e.g. that defendant R. was charged with murder at 8:20 pm in the absence of any proof connecting her to the homicides and hours before she implicated herself. Nevertheless, the fact remains that Benoit contradicted himself so often, sometimes waffling back on the same point three or four times, that portions of his testimony must be rejected as untrustworthy. Although it is apparent that the detective had no clear recollection of the events that took place in the 28th Precinct station house, his memories of the events leading up to the arrest of the defendants appear to be more accurate.
Judge White, who decided defendants' omnibus motions, granted defendant Tyrell's application for Payton, Dunaway, Huntley, Mapp and pre- Wade ( Rodriguez) hearings. She ordered a Huntley hearing as to defendant R. During the hearing The People consented to the application of defendant R. to extend the hearing to the issue whether the statements she gave to the police were tainted fruit of an illegal arrest. I note that the property recovered from defendant Tyrell's apartment was seized pursuant to the execution of a search warrant. Defendant's application to suppress the property is limited to the issues whether the initial entry of the police into the apartment and any search of the premises that took place at that time were lawful.
Despite the unreliability of portions Benoit's testimony and the errors contained in the police paperwork, it is possible to accurately discern what transpired during the investigation. For the most part the witnesses gave accounts of the events which were consistent with each other. There was sufficient corroboration among them to be able to recognize which information in the paperwork was simply false and which accounts were unreliable. Although there were many instances in which the witnesses disagreed on specific points (e.g., what Lloyd Lasley told the police about the extent of defendant Tyrell's participation in a sale of 30 pounds of marijuana; the strength of the odor of marijuana in the stairwell outside of defendant Tyrell's apartment; whether there was music coming from the apartment), these differences do not compel different outcomes. I credit the testimony of the witnesses to the extent indicated in my findings of fact, which follow.
One of the prosecutors in this case submitted a reply affirmation on this issue in response to defendants' argument that the detectives lied in testifying that they detected a strong smell of marijuana in the apartment and hallway. The prosecutor states that duffel bags of marijuana were later discovered in Tyrell's apartment and brought to a second-floor room in the station house. He further states that when he went to the station house on April 15th, the building "reeked" of marijuana and assures me that, "the smell drifted throughout the precinct house despite the fact that this evidence was stored on the second floor of the station house." He then argues that, a fortiori, the smell must have been stronger in defendant's small apartment. I have disregarded this affirmation in deciding defendant's motion both because the People did not seek leave to reopen the hearing and because the prosecutor has sought to become a witness whose statements are not subject to cross-examination. It is distressing that an experienced prosecutor would seek to vouch for his witnesses and interject himself into the record in this manner.
Findings of Fact
Detective Benoit was the lead detective in a police team that was investigating the deaths of Linton Mattis and Donald Ashton. The bodies of Mattis and Ashton had been discovered in the bathroom of Mattis's apartment, which was located at 276 West 127 Street. Both men had been bound with duct tape and shot through the head. When Benoit and Detective Kermit Hardy went to the apartment on April 13, 2004 they smelled a strong odor of marijuana and observed marijuana residue. The police later discovered that Ashton had been a low-level drug dealer.
Among the people that Benoit and other detectives interviewed in connection with the homicides was Lloyd Lasley, who claimed to have been a close friend of Mattis. During his discussions with the police on April 13 and 14 Lasley stated that he knew Mattis from the West Indies and that they had been friends for fifteen years. Mattis, Lasley stated, had been a marijuana dealer with regular clientele. He also revealed that he had been present in Mattis's apartment on Sunday, April 11 when Mattis sold between a half-pound and a pound of marijuana to Sowande Tyrell. Lasley had known Tyrell from the time the latter had been a child, but neither liked nor trusted him. Mattis had also been well acquainted with Tyrell, who was like a stepson to him. He had helped Tyrell's mother, Sheryl, when she came to the United States from the Carribean. According to Lasley, Mattis had stated that he was shortly expecting a shipment of 30 to 50 pounds of marijuana and had some out-of-town buyers for it. Mattis was nervous about so large a shipment. Defendant Tyrell had been present when Mattis mentioned the prospective sale to Lasley.
The police utilized the information that Lasley had given them to obtain a photograph of Tyrell. They put the photograph into a computer-generated photo array which they showed Lasley. Lasley identified the person pictured in the photograph as Sheryl's son, the person he had seen purchase marijuana from Mattis. The police also obtained a number of addresses of locations that were linked to Tyrell. On April 14 Detective Christopher Killen informed detectives Benoit and Antonio Rivera that Tyrell had a reputation for robbing drug dealers. At about 7:00 pm that same day Detectives Benoit, Hardy and Gerard Dimuro visited Apartment 6 at a building located at 16 West 125th Street in the hope of finding Tyrell. Benoit wanted to speak to him to find out if he had any information that would be helpful to his investigation of the murders.
The three detectives ascended the stairway leading up to the apartment, which was located on the third or fourth floor. By the time they reached the five-by-five-foot landing immediately outside of Apartment 6 the detectives, all of whom had previously served in narcotics units, smelled the odor of marijuana. Benoit stood in front of the door of the apartment, his gun in his hand behind his back. Hardy stood in back of Benoit, one foot on the landing and one foot on the staircase, and Dimuro was behind Hardy. The detectives were somewhat apprehensive because they were investigating a double homicide and they had no idea how many people might be in the apartment or if they had weapons. Benoit banged forcefully on the apartment door and yelled "police." Within 20 seconds defendant Tyrell opened the door and stood in the doorway. The odor of marijuana was strong. It was impossible to see into the pitch-black apartment behind him. The detectives, who were already concerned for their safety, became even more wary.
Although he recognized Tyrell from the photo array, Benoit asked him his name to verify his identity. He then ordered him out into the hall. Tyrell complied. As he came out Benoit passed him to Dimuro who patted him down. Dimuro handed him to Hardy, who placed him on the ground with his knees up against the wall. Hardy handcuffed him shortly thereafter. At some point Detective Benoit asked Tyrell if there was anyone else in the apartment. Tyrell told him that his little brother was inside.
Benoit began to yell into the apartment, "come out, get out, it's the police, come out, come out." A few seconds later two males exited. Benoit continued to yell into the apartment and soon a fourth male and then a female (defendant R.) also exited. None of them appeared to be under the influence of marijuana, alcohol or any other substance. The detectives frisked the males as they exited and placed them against the wall, both as a safety measure and because Benoit believed that they had been engaged in illegal activity. As there was no female police officer present, defendant R. was not frisked but was placed on the floor against a wall near Dimuro. As the small landing became crowded, Hardy placed two of the males on the stairwell. These two were placed on their knees facing the wall. The two on the landing also faced a wall but remained standing. By this time (about 7:15 p.m.) the detectives had run out of handcuffs. They called for backup. When additional officers arrived the remaining males were handcuffed. Benoit informed Sergeant Cannon and the other police personnel who had arrived that the five were to be transported to the precinct station house. Some of the officers in uniform were sent into the apartment to determine if anyone remained inside. The officers did not discover anyone. Several officers were asked to safeguard the apartment until it could be thoroughly searched. In addition to Sergeant Cannon, Detectives Antonio Rivera, Madilyn Thorson, and Joseph Litrenta were among those who arrived at that time. Dimuro took defendant R. back into the apartment to obtain additional clothing. Litrenta spoke to her in the apartment kitchen. Litrenta did not believe her when she told him, in response to his direct question, that none of them had been smoking marijuana in the apartment. He also asked her how old she was and she told him that she was 16. When he asked her what she was doing in the apartment she told him that she had been hanging out with people and watching them play dice. He called over Detective Thorson to pat down R. for weapons. After doing so Thorson took R. out of the apartment, handcuffed her and transported her to the station house. Neither R. nor any of the other occupants of the apartment was found to be in possession of marijuana or any other contraband.
The other three males in the apartment were defendant's 16-year-old brother, a 15 year old, and another 16 year old.
Aside from Litrenta's few questions to R., none of the five people in police custody were questioned at the scene. Instead, Benoit had them separately transported to the 28th Precinct station house in handcuffs to be questioned. Benoit believed that the odor of marijuana in the apartment indicated that at least some of them had been smoking that substance inside. Although he did not know who among them had been smoking, and realized that some of them were possibly no more than witnesses to illegal activity by others (or even victims of a crime), he "handcuffe[d]" everybody who was in the apartment [who] possibly [could have been] doing some kind of illegal drug activity." The police intended to hold the five until they obtained a warrant to search the premises. If they discovered marijuana during the search the occupants would be charged with possession of it. If it turned out that no marijuana was present, their arrests would simply be voided. They also intended to question the five about the murder case. The police executed a search warrant for the apartment the next day (April 15) and discovered a pound of marijuana in the bedroom of defendant Tyrell's brother. Of the five only he was ever charged with possession of it. The prosecutor later dropped all charges against him.
By 7:30 that evening the cars transporting the defendants and the other three other people who had been taken into custody arrived at the station house. The five were placed in separate locations for questioning. Defendant Tyrell was placed in an interview room and his handcuffs were removed. Except for a brief and uneventful visit from Dimuro at 8:20 p.m., he remained alone in the room for a number of hours. Dimuro returned later that night and spoke to the defendant for a few minutes. At that time Dimuro introduced himself and told him that the police were investigating a robbery and double homicide. The reason he had been brought there, Dimuro continued, was because people were making allegations against him. People had told the police that he had engaged in a 30-pound marijuana deal with Mattis. The detective told Tyrell that he realized that there might be nothing to these allegations, but it was in the defendant's best interests to give his side of the story. Tyrell told the detective that two people had mentioned the deaths to him. He then removed a newspaper clipping about the murders from his wallet and showed it to Dimuro. He explained that he was going to show the article to his mother. He stated that he would talk to Dimuro but first wanted some water. The detective left and soon thereafter returned with water. He was accompanied by Detective Benoit, who administered Miranda warnings at 12:30 a.m. on January 15.
It is impossible to determine exactly how much time elapsed between Dimuro's statement to the defendant and Benoit's administration of Miranda warnings. It could have been as much as two hours(as police paperwork indicates) or as little as a few minutes. It is logical to assume, as Dimuro testified, that there was a "continuous flow of events" between the time that he told Tyrell that it was in his interest to tell his side of the story, defendant's statement that he would speak to the police after Dimuro brought him water, and Dimuro's return with Detective Benoit with the water Tyrell had requested. If so, the sequence of events probably took no more than 15 or 20 minutes. This would mean that the administration of Miranda warnings occurred within a half-hour of Dimuro's introducing himself to Tyrell.
Tyrell agreed to talk to the detectives about the incident, but insisted that they not write down anything he said or make reference to the drug trade. The detectives agreed. He then stated that he had known "Frankie" (Mattis) and admitted that he had purchased a pound of marijuana from him on April 10. He was aware that Frankie was expecting a 30-to-50 pound shipment of marijuana and had intended to hold on to it for Frankie. He had gone back to Mattis's apartment with defendant R. and a male black whom he identified as "C" on April 13 (the day of the murders) to pick it up. The marijuana had not yet arrived and he was too nervous to wait there for it. Mattis called him later that day but when he returned to the apartment the shipment had still not arrived. He left and returned to the building once more. This time he saw police and decided to walk away.
Shortly after finishing his narrative Tyrell indicated that he wanted to write something. The detectives gave him a pen and pad and left the room. When Dimuro returned he observed writing on several sheets of paper. On one of the sheets defendant had written that he had known Frankie for 14 years, that Frankie had been a good man and that it was a terrible thing that he had been murdered. The police retained this statement but discarded the other sheets of paper.
The detectives provided Tyrell with water, soft drinks and food during his detention in the interview room. He was given several opportunities to use the bathroom and slept for three or four hours beginning at 2:00 a.m. Sometime between 5:20 and 9:00 a.m. on April 15th several detectives informed Dimuro that defendant R. had made statements that implicated Tyrell in the murders. He went into the detention room and informed Tyrell, who was already awake, that "his story [was] not going to fly. She's giving you up." When Tyrell said nothing in response Dimuro left the room.
R. had indeed begun to implicate Tyrell. Detective Thorson brought R. to the station house shortly after 8:00 p.m. on April 14th and handcuffed her to a chair in the lunchroom. Detective Rivera came into the room to check up on her ten minutes later. He asked her about her parents and she told them that she was staying with her grandmother. She also mentioned that she did not know where her father was and that her mother was in the Dominican Republic. Rivera left when Detective Thorson came into the room five or six minutes later, but Rivera returned periodically that evening to ask whether she wished to use the bathroom or needed something to eat or drink.
When Thorson came back into the room at 8:20 p.m. with her partner, Detective Hicks, she removed R.'s handcuffs and administered Miranda warnings. R. agreed to speak. Thorson then asked her what she was doing in the apartment and how she knew the people who had been there with her. She told her that the police were investigating a double homicide and emphasized the seriousness of the matter. R. told the detectives that one of the others in the apartment, Juan (or "Wan"), was her boyfriend. She had been hanging out there that evening. Thorson then asked her about her actions on the day of the murder (April 13). R. told her that she did not know anything about any murders. She hadn't been with her boyfriend on the 13th, but had spent her time with her friend, Ricky, in the Bronx. Thorson and Hicks spoke to R. for about an hour. The detectives did not write down any of this information, but asked for Ricky's telephone number. Thorson then telephoned him and made an appointment to see him that night.
Thorson and Hicks traveled to the Bronx to speak to Ricky. He told them that although he saw R. on the 13th, it was not until late in the evening, hours after the detectives believed the shootings to have taken place. Thorson returned to Manhattan shortly before about midnight to confront R. with the information she had learned from Ricky. After briefing Detective Rivera what she had learned, she told R. that Ricky had not corroborated her alibi. The detective accused her of lying and demanded that she tell her "the real story" because they were investigating a serious matter and she could be in a lot of trouble.
Ten or fifteen minutes after Thorson and Rivera began to stress the importance of telling them the truth, R. told them that she was going to speak truthfully. She began a narrative which was occasionally interrupted by a question from Thorson. By 1:15 a.m. on April 15th, she had completed speaking the detectives. They then went over her story with her again, this time writing it down. Thorson read her statement back to her and asked if it was accurate. She then asked the defendant to read it to herself. When she finished reading Thorson asked her to initial each line and sign it at the end. In this statement she identified "Wan" (defendant Tyrell) as the person who shot both victims and also implicated herself and a third person in the murders. The detectives then left the room. At 8:15 that morning R. stated that she had forgotten some details and wanted to add something to her statement. Thorson told her to write down what she wanted to add and to sign the new statement. On the afternoon of the 15th she gave a 40-minute video-taped statement to an assistant district attorney. The content of this statement was substantially the same as that of the statement she gave at 1:15 a.m. She again waived her Miranda rights prior to giving this statement. Late that night she gave a second video-taped statement which lasted 5 minutes.
At about 9:00 a.m. on April 15th, some time after Dimuro informed Tyrell that R. had begun to incriminate him, Tyrell knocked on the door of the room in which he was being held and asked to speak with Detective Benoit. Dimuro and Benoit went into the room and listened while Tyrell gave an narrative which the detectives rarely interrupted. After he finished Benoit began to write down the statement, asking the defendant questions from time to time. In this statement Tyrell gave an account in which he admitted that he and R. had been present in Mattis's apartment during the shootings, but which minimized their responsibility. According to Tyrell, the primary actor in the robbery and murders was his friend, Lamar Pleasant, who had ordered Tyrell and R. about and was the actual shooter. The detectives read the statement back to Tyrell and asked him to sign it, but he refused. Benoit and Dimuro left the room. When they returned about noon and asked him if he wished to make a videotaped statement he asked to speak to an attorney.
Conclusions of Law
I find that Lloyd Lasley, who had known Sowande Tyrell since the latter was a child, was familiar with him to the extent that there was virtually no possibility of Lasley misidentifying him (see People v. Rodriguez, 79 NY2d 445). Consequently, it is irrelevant whether the photographic array that the police showed Mr. Lasley was unduly suggestive (see People v. Howard, 87 NY2d 940). Accordingly, the application to preclude him from making an in-court identification of defendant Tyrell is denied.
The People do not argue that Benoit and the detectives with him did not arrest defendants when they ordered them out of the apartment, had them transported in handcuffs to the station house, and interrogated them on and off for many hours, nor could they. The detectives acted reasonably in ordering the five occupants to exit the apartment. The fact that they were investigating the murder of a marijuana dealer and their inability to see into the pitch-black apartment from which emanated a strong smell of marijuana were among the factors which justified their acting with extreme caution. Benoit did not act excessively, therefore, by drawing his gun, ordering the occupants out of the apartment and having them frisked. ( see People v. Finlayson, 76 AD2d 670; People v. Fernandez, 86 AD2d 416). What followed elevated their seizures to full arrests. The detectives placed Tyrell, R. and the other occupants against the wall, standing or on their knees, and handcuffed them. The five were handcuffed although the police had already determined that they did not have weapons ( see People v. Robinson, 282 AD2d 75). They kept them against the wall until additional personnel arrived to take them to the station house, still in handcuffs, where they were to be questioned. The defendants were never free to leave and were kept there for extended periods of time. In taking these actions the detectives arrested the defendants. No reasonable person, innocent of any crime, would have believed in those circumstances that he or she was free to leave ( see People v. Brnja, 50 NY2d 366, 372; People v. Rivers, 129 AD2d 983; People v. Vaughn, 275 AD2d 484).
Contrary to defendants' argument, the detectives did not commit a Payton violation ( Payton v. New York, 445 US 573) in ordering them to exit the apartment and then arresting them. Defendant Tyrell was standing in the doorway of the apartment when Detective Benoit ordered him out into the hallway. He had no legitimate expectation of privacy in that part of his residence, as he was exposed to public view as he stood there ( see People v. Reynoso, 309 AD2d 769). Additionally, both he and defendant R. were lawfully ordered to exit the apartment. The police may order occupants of a residence to exit the premises as long as they do not coerce them ( see People v. Anderson, 146 AD2d 638). Although Benoit had his gun drawn, there is no indication that he pointed it at anyone in the apartment, or that any of the occupants even saw the gun. Moreover, neither he, Hardy nor Dimuro otherwise threatened the occupants in ordering them to leave the apartment. The direction to exit was therefore not coercive ( see People v. Minley, 68 NY2d 952). Accordingly, the police committed no Payton violation as to either defendant.
I note that the People do not argue that defendants lacked an expectation of privacy in the apartment.
Defendants also argue that the police lacked probable cause to arrest them. For this reason, they argue, their confessions must be suppressed as tainted fruit of illegal arrests ( see Wong Sun v. United States 371 US 471; Dunaway v. New York, 442 US 200). As the police had different quanta of information as to each defendant, I will deal with each defendant separately.
Defendant R.
The police had no information concerning R. prior to their arrival at 16 West 125th Street and if they had probable cause to arrest her, it could only have stemmed from information they learned at that location. The People argue in substance that the information gleaned from Lasley, combined with the strong smell of marijuana present in Apartment 6 provided probable cause to believe that "criminal activity involving marijuana had either just taken place, was taking place, or was about to take place." However much that may be true as to Tyrell, to whom Lasley's information solely pertained, it does not hold true as to the remaining occupants of Apartment 6. All the police knew as to these others was that they were present in an apartment from which a strong smell of marijuana could be detected. That they were discovered in the company of Tyrell did not provide probable cause to arrest them regardless of the quantum of evidence against him. The question then becomes whether the presence of a strong smell of marijuana in an apartment, without more, provided probable cause to arrest the occupants of the apartment.
The People cite authority for the proposition that the odor of marijuana may provide the police with probable cause to search an automobile and its occupants ( see People v. Chestnut, 43 AD2d 260). They also concede that the case law does not "firmly" recognize that such an odor permits the police to search a residence ( see People v. Troy, 70 Misc 2d 799; People v. Madow, 60 Misc 2d 742). They do not address the question whether such an odor provides probable cause to arrest all of the occupants of a residence for a marijuana-related offense when no search has confirmed that marijuana is present or revealed where in the residence it is located. I note that there was no evidence establishing that any of the occupants, let alone Ms. R., either appeared to be under the influence of marijuana or personally smelled of that substance. The detectives also did not observe anyone smoking marijuana.
I find no authority in this jurisdiction for the proposition that the odor of marijuana emanating from a residence alone provides probable cause to arrest every occupant of the residence. There is no reason to believe that such an odor may not, under some circumstances, provide probable cause to search the premises. In addition, it is reasonable to suppose that in some circumstances it may provide probable cause to arrest an occupant of the residence in the absence of a search, but only when it associated with a particular occupant, or where there exists other information linking the marijuana to that individual (e.g., information obtained from an informant.) In the absence of such information, although there may be probable cause to believe that someone in the residence was or is either smoking marijuana or in possession of it, it is impossible to determine who that person is ( see People v. Harshbarger, 24 Ill. App. 3d 355; State v. Steelman, 93 SW3d 102 [Tex. Crim. App. 2002] and see, generally, 2 Lafave, Search and Seizure § 3.6(b) at 37 [2nd ed]). In this case, although there was independent information providing reason to believe that Tyrell was at some point in possession of marijuana, the police had no information connecting any of the remaining occupants with his possession. In addition, the police had no information connecting any of the remaining occupants, including R., to the odor in the apartment. R.'s mere presence in the apartment did not provide probable cause to arrest her for a marijuana-related offense.
The police ultimately discovered marijuana only in the bedroom that was occupied by defendant Tyrell's brother. It is doubtful that the presence of marijuana in his room would have provided probable cause to charge R. with possession of it had they lawfully discovered it prior to arresting her.
In the absence of probable cause to arrest, any statements which are the product of the exploitation of her arrest are inadmissible ( see Wong Sun v. United States, 371 US 471, 488; People v. Jones, 2 NY3d 235). If the causal connection between the arrest and the statements which follow it has been broken or sufficiently attenuated, however, the taint stemming from the illegal arrest is considered to have dissipated and there is no constitutional bar to admission of the statements ( see People v. Harris, 77 NY2d 434).
Several factors bear on attenuation. There is a threshold requirement that the defendant be apprised of her rights under Miranda ( Brown v. Illinois, 422 US 590). The People concede that the statements that R. gave to Litrenta before she was taken to the station house are inadmissible because she was in custody and had not waived her Miranda rights at this time. Similarly, the few questions that Detective Rivera asked R. at 8:00 p.m. preceded Miranda warnings and are inadmissible. All of the subsequent statements that she gave the police, however, followed her knowing and voluntary waiver of Miranda rights.
The three determinative factors to be explored in analyzing whether an illegal warrantless arrest has tainted a subsequent admission are the temporal proximity between the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct ( People v. Harris, 77 NY2d 434; and see Brown v. Illinois, 422 US 590). The most ambiguous of these is temporal proximity ( see Dunaway v. New York, 442 US 200). There is no per se rule as to what period of time will sufficiently attenuate prior taint. This factor can only be weighed in conjunction with the other factors in the case. A period of several hours, during which the person arrested was left completely alone, has been held sufficient to attenuate the taint flowing from an illegal arrest ( People v. Rich, 206 AD2d 443), while in other circumstances a period of approximately the same duration has been held insufficient ( People v. Vaughn, 275 AD2d 484). In People ex.rel. Jones v. State Board of Parole ( 76 AD2d 782, aff'd 54 NY2d 644) the passage of two days was held to be insufficient.
The People cite several cases for the proposition that the passage of as little as thirty or forty minutes may dissipate taint flowing from an illegal arrest. The cases cited are in are the Chapple- Bethea line of cases ( see People v. Chapple, 38 NY2d 112; People v. Bethea, 67 NY2d 364). They do not concern Mirandized statements which follow Fourth Amendment violations, and are therefore inapposite.
No intervening event sufficient to remove the taint of R.'s illegal arrest occurred between the time she was taken into custody and her statement to Thorson at 8:20 p.m. that same evening. R. gave this statement approximately an hour after she was arrested. Although she waived her Miranda rights at that time, the administration of Miranda warnings alone will not dissipate the taint stemming from an illegal arrest ( see People v. Byas, 172 AD2d 242; Brown v. Illinois, 422 US 590, 601). In view of the lack of intervening circumstances and the exceedingly short temporal proximity of this statement to the time of the arrest, it is suppressed.
The next statement at issue is the one given by R. to Thorson after the detective returned from her interview with Ricky. R. gave this statement approximately five hours after her arrest. I reject the People's argument that the discovery by the police that R. had given them a false alibi was an intervening factor which cleansed the taint of her illegal arrest, as the statement in which she provided that alibi was itself tainted by the same illegal conduct ( People v. Clark, 149 AD2d 720; People v. Campbell, 8/9/1993 NYLJ 24 [col 4]). There were no other intervening factors applicable to this statement.
At 8:15 a.m. R. informed the police that there were details that she had omitted from her previous statement and she gave them a short written statement. This occurred approximately eight hours after her arrest. Again, no new intervening factors are applicable to this statement. Her videotaped statements were given about 18 and 28 hours, respectively after she had been taken into custody. Tyrell had implicated her in his 9:00 a.m. statement by the time these statements were made. This intervening event is of the type which attenuates taint ( see People v. Leandry, 130 AD2d 351; People v. McCloud, 247 AD2d 409). In addition, the assistant district attorney who took these statements again apprised her of her Miranda rights prior to questioning her. The question remains whether these factors sufficiently cleansed the taint stemming from her illegal arrest in view of what I find to be deliberate misconduct on the part of the police.
At the time of her arrest the police did not have any reason to believe that R. was connected with the murders of Ashton and Mattis and lacked probable cause to connect her to a marijuana related offense. Moreover, as I conclude that the police were aware that they did not have a sufficient predicate to arrest her, but nevertheless took her to the precinct station house in order to question her about the murders and any marijuana-related offense that had occurred in the apartment, I find that they acted in bad faith. "In addition to the dictates of Miranda and the standard of voluntariness, the controlling consideration for determining the admissibility of verbal' evidence obtained pursuant to claimed illegal police conduct is whether law enforcement officers acted in good faith and with a fair basis for belief that probable cause existed for an arrest" ( People v. Martinez, 37 NY2d 662, 668). Where the police orchestrate an arrest knowing that they do not have the right or authority to do so, and exploit the illegal detention in order to develop evidence that they would not otherwise discover, the taint between the arrest and the resulting evidence is not attenuated ( see People v. Rogers, 52 NY2d 527, Brown v. Illinois, 422 US 590; United States v. Crews, 445 US 463).
Detective Benoit, as the lead detective in the police investigation, was in charge of the investigation and the actions taken by the police on the landing at 16 West 125th Street. His testimony, as well as the other testimony in this case, forces the conclusion that he was aware that the police did not have probable cause to arrest R. for either the murders or for a marijuana-related offense. He and Detectives Hardy and Dimuro were not newly minted police officers, but experienced detectives with sixty years of experience on the police force between them. At the time of these events Benoit had been a detective for almost fifteen years. Although Dimuro and Hardy testified as to the reasons the five were taken into custody that evening, it is apparent that decision belonged to Benoit and he bears the responsibility for the actions of the police on the landing.
Hardy testified that he believed that Benoit had told him that Tyrell was a possible suspect or that he "possibly did it" [the murders]. He admitted that he had no information as to any of the others. Dimuro testified that the police had come to the apartment to speak to Tyrell, but "once the marijuana angle came into effect they [the other occupants] were going. . . . The trigger for the other four was the marijuana smell." He stated that the detectives also wanted to know what the four knew about Tyrell.
Not only was probable cause lacking to arrest R. for either the murders or in connection with a marijuana related offense in the apartment, but it is apparent that she was arrested in order to give the detectives an opportunity to question her about these crimes. It seems all but certain that Benoit's true purpose was to question her about the murders, as that was crime he was investigating. Furthermore, unless he was interested in the murders, there was little reason to transport the five to the station house. Had Benoit been interested about the presence of marijuana in the apartment he would have questioned the occupants on the landing as to the reason for the odor. None of the detectives who came to the apartment questioned any of the occupants as to this issue. Although R. was asked two questions as to what was going on in the apartment, it was by Litrenta. Moreover, by the time Litrenta asked her these questions Benoit had already directed police personnel to take the five occupants to the station house. The sole focus of her interrogation at the station house was the murders. Thorson asked her a few general questions but almost immediately explained that the reason she was asking these questions was because the police were investigating a double homicide. She soon asked her about her actions on April 13. There was no testimony that Detective Thorson ever mentioned the word "marijuana" to her.
It does not matter whether Benoit's primary interest lay in developing additional information about the presence of marijuana in the apartment or the murders, as he lacked probable cause to arrest R. in either case. Moreover, the evidence at the hearing established that he was aware that he lacked probable cause to arrest her for either crime. That he was aware that he lacked probable cause to arrest her for the murders is beyond argument. As to the possibility that he believed that he had probable cause to arrest R. for a marijuana-related offense, Benoit admitted that he "had no information whatsoever that [Ms.] R. was doing anything illegal in that apartment." He stated that she was arrested because he "believed that there was some kind of [activity] of an illegal nature going on, there was drug using going on inside the apartment that gave [him] some sort of probable cause to have those individuals come out and find out what's going on." I take Benoit's use of the phrase "some sort of probable cause" to mean that he did not believe that he had probable cause per se, but that he had some legal predicate for removing the occupants from the apartment and questioning them. To be sure, the odor of marijuana likely provided Benoit with a sufficient predicate to question R. at the scene about the presence of marijuana in the apartment and who, if anyone, had been smoking. If that was his original intention, he did not carry it out, as he did not question R. (or any of the others) at the scene in order to clarify what had transpired in the apartment. Instead, he ordered the five arrested and taken to the 28th Precinct station house, even though, he testified, he realized that there was a possibility that some of them were no more than witnesses to or victims of illegal activity.
I do not lightly determine that Benoit must have known that he was acting unlawfully. I am cognizant of the fact that it would not be proper to charge a New York City detective, even one as experienced as Benoit, with knowledge of every particular of the law of search-and-seizure, or legal issues which have no definitive answer until they are scrutinized by courts. There is no possibility, however, that Benoit or the other detectives in his party could have believed that the police had probable cause to arrest those who they knew were possibly no more than victims or witnesses to a crime. There is no possibility that they could have believed that they could keep one such person there for five hours and subject her to custodial interrogation until her statements provided enough evidence to charge her with a crime.
In addition, as the police did not observe R. in possession of felony-weight marijuana and she was arrested in a private residence, they must have known that they did not have the statutory authority to arrest her (CPL 140.10[1][a], [b]).
In light of the fact that the police arrested and interrogated R. despite their knowledge that their actions were improper, that the videotaped statements were given more than eighteen hours after she was taken into custody and after the prosecutor re-administered Miranda warnings are insufficient to attenuate the taint flowing from the arrest. Accordingly, her application to suppress her statements is granted in its entirety.
Sowande Tyrell
The police went to Tyrell's apartment only to question him about the murders of Mattis and Ashton. He was not arrested in connection with the murders, but because the police believed that he, along with everyone else in the apartment, was "possibly" engaged in drug activity. As discussed above, I find that the there was insufficient predicate to arrest the occupants on this basis. Nevertheless, if probable cause to arrest Tyrell existed, it is irrelevant that the arrest cannot be justified by the reason stated by the police, or that they may not have believed that they had probable cause to arrest him for any other crime. Whether probable cause to arrest in fact existed does not turn on the subjective intentions or beliefs of the police ( see People v. Lopez, 95 AD2d 241, 246; Whren v. United States, 517 US 806). When it objectively appears that the police possessed sufficient information to arrest a defendant for a specific crime, the arrest is lawful even if the police may not have realized at the time that such a predicate existed ( see People v. Jones, 219 AD2d 417, 421; People v. Robinson, 271 AD2d 17, 24; Devenpeck v. Alford, 543 US 146).
By the time the detectives recognized the strong odor emanating from defendant's apartment they had probable cause to arrest him for his April 11 possession of the marijuana that he had purchased from Mattis. Lloyd Lasley told them that he had been present in Mattis' apartment on that day and that he had seen Tyrell make such a purchase. "Information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" ( see People v. Burton, 194 AD2d 683, 684). Lasley was such an informant and his reliability may therefore be presumed ( People v. Hetrick, 80 NY2d 344, 349). I reject the argument that Llasley should not be viewed as reliable as a civic-minded "Good Samaritan" who voluntarily comes forward and reports a crime. However he may have come to the attention of the police, he voluntarily spoke to them. He did not provide information for mercenary reasons or to secure their favor. Additionally, he was under no obligation to report the incident he had seen. He spoke to them in person at the police station and was likely aware that he could be prosecuted if he gave a false report of a crime. I also reject the argument that Lasley was untrustworthy because he had been a friend of Mattis and expressed an animus toward Tyrell. Lasley admitted to the police that he did not trust the defendant, and this very openness provided reason to believe that his feelings were not so extreme that they would cause him to fabricate the account he was giving. Moreover, whatever anger or other emotions he felt toward Tyrell were similar to those often felt by crime victims about the people they report to the police. That they may have strong feelings toward those who prey on them, their family or friends does not give cause to reject their reports as untrustworthy. There is no reason to discount Lasley's reliability ( see People v. Rodriguez, 52 NY2d 483).
Lasley had a basis of knowledge for the information he provided, as well. "If an informant carefully describes the underlying circumstances in which he obtained his information and his description of such circumstances clearly indicates that he speaks with personal knowledge of the event which he relates, the `basis of knowledge' requirement is satisfied." ( People v. Rodriguez, 52 NY2d at 491). Lasley informed the police that he was well acquainted with both Mattis and Tyrell and there was no question that he had mistaken the latter for someone else. Additionally, he told the police that he had been present in Mattis's apartment on Sunday, April 11, when Tyrell purchased between a half-pound and a pound of marijuana. Although the detectives did not ask him how he had recognized the substance sold as marijuana, they could presume that one who was a long-time intimate of a marijuana dealer, who knew that he had regular clientele and was even present when marijuana deals were consummated, was acquainted with the appearance and odor of marijuana. Additionally, Lasley witnessed a transaction in which the seller represented to the buyer that he was selling marijuana. It was reasonable to rely upon such a representation, especially as it came from one he knew to be in the marijuana business. Furthermore, independent information confirmed aspects of Lasley's account. The strong odor of marijuana and the presence of marijuana at the murder scene confirmed that such substance had recently been present in the apartment. The presence of that same odor emanating from Tyrell's apartment was yet another factor which buttressed, if marginally, Lasley's account.
For these reasons the police had no reason to doubt either Lasley's veracity or his basis of knowledge. His statements that he had seen Tyrell purchase between a half-pound and a pound of marijuana from Mattis on April 11 gave them the probable cause to believe that the latter had committed a felony on that day (Penal Law 221.20). They therefore had the authority to arrest him for that crime (CPL 140.30[a]).
Defendant was in custody at all times during his stay at the station house. He had been summarily ordered out of his apartment and taken in handcuffs to the police station. When he arrived there he was placed in a room and told in substance that he was being detained because the police had information that he had engaged in a large marijuana purchase and that the person who had allegedly sold him the marijuana was one of two people who had recently been murdered whose deaths he was investigating. An innocent person in this situation would reasonably believe that his freedom was significantly restricted Matter of Kwok T., 43 NY2d 213; People v. Nova, 198 AD2d 193).
When Detective Dimuro told Tyrell about the allegations that had been made against him he also told him that it was in his best interests to give his side of the story. Tyrell then stated that two people had mentioned the deaths to him and that he had read a newspaper clipping about the murders which he intended to show his mother. I find that an objective observer would conclude that Dimuro's statement encouraging the defendant to speak about the incident was reasonably likely to elicit an incriminating statement ( see People v. Rivers, 64 AD2d 834; People v. Ferro, 63 NY2d 316). Defendant's response is therefore suppressed, as he was in custody at the time and had not yet waived his Miranda rights.
At this time Tyrell indicated that he would talk to Dimuro but first wanted some water. When the detective, accompanied by Detective Benoit, returned with the water at 12:30 a.m., defendant waived his Miranda warnings and gave an oral statement. He also provided a short written statement soon thereafter. Defendant argues that these statements must be suppressed on the ground that they were part of a continuous chain of events which began with his earlier, unwarned interrogation by Dimuro ( see People v. Chapple, 38 NY2d 112; People v. Bethea, 67 NY2d 364). Pursuant to these cases, where, as here, a person gives an un-Mirandized statement, if he then waives his Miranda rights and gives a subsequent statement in the course of continuous questioning, the subsequent statement is inadmissible. The exception to this principle is where "there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" ( see People v. Chapple, 38 NY2d at 115). Breaks as short as thirty or forty minutes have been held to satisfy this requirement ( see People v. Hawthorne, 160 AD2d 727; People v. Heron, 240 AD2d 156). In this case, however, I find that less than 30 minutes elapsed between Dimuro's first statements to Tyrell and the entry of the detectives into the room at 12:30 a.m. The difference in time between the Miranda violation and the subsequent admission is not the only factor, however, that must be weighed to determine whether such a break has occurred. Among the other factors are "whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police" ( People v. Paulman, 5 NY3d 122, 130-131).
I find that despite the short period of time between the un- Mirandized statement and the 12:30 a.m. statement, suppression of the 12:30 a.m. statement and the written statement is not required These statements were made knowingly and voluntarily. Dimuro's interchange with Tyrell at about 12:00 was exceedingly short and had none of the hallmarks of coercion. The defendant was not handcuffed during this period. Additionally, he agreed to speak to the detectives, and only on such terms that he himself set — that they not write down anything he said or make reference to the drug trade. Moreover, "defendant was not subjected to relentless custodial interrogation' without benefit of Miranda warnings, as is contemplated [in the Chapple- Bethea line of] cases" ( People v. Holmes, 145 AD2d 908 at 909). His statements to Dimuro prior to being Mirandized were innocuous, as they did not incriminate him in any crime. I therefore find that they did not constitute "the first in a continuous chain of events'" ( id.; see People v. Jamison, 307 AD2d 368). I also note that there is no reason to believe that defendant's un- Mirandized remarks committed him to confessing to either the murders or a drug offense.
Defendant does not argue that the statement should be suppressed pursuant to People v. Tanner ( 30 NY2d 102). Not only did Tyrell's statement not let the "cat out of the bag," but suppressing a statement on this basis requires a factual determination which can only be made by examining defendant's state of mind ( see People v. Alaire, 148 AD2d 731). As defendant did not testify at the hearing, there is no factual basis for making such a determination ( see People v. Newsome, 68 AD2d 377, 389).
The same analysis applies to the statement that the defendant gave to the detectives at 9:00 a.m. on April 15. Additionally, defendant gave this statement almost nine hours had passed from the time Dimuro elicited the un- Mirandized statement. The passage of so much time, in conjunction with the other factors mentioned, returned defendant to the status of one who was not under the influence of questioning. Indeed, even in the absence of those other factors, the passage of so much time would have had the same effect, especially as the 9:00 a.m. statement was initiated by Tyrell.
That the detectives earlier told him that Ms. R. had given them a statement implicating him in the murders did not render his 9:00 a.m. statement involuntary.
Although I find the statements of Ms. R. to have been tainted fruit of her illegal arrest, that taint did not affect the voluntariness of Tyrell's statement. Had she not given the police any statement whatsoever, the police would lawfully have been able to falsely tell Tyrell that she had confessed to the murders and implicated him ( see People v. Jackson, 143 AD2d 471; People v. Tarsia, 50 NY2d 1; People v. Soto, 295 AD2d 230). The result should be no different here, where the police truthfully informed Tyrell that R. had inculpated him. Accordingly, the application to suppress this statement is denied.
Entry in the Apartment
I find that the police lawfully entered the apartment on April 14. Five people had just exited from the apartment and the police had just made a lawful arrest. The occupants had straggled out of the apartment in one's and two's as Detective Benoit repeated his commands to come out. He had no way to be sure that others did not remain hiding inside ignoring his commands. The detective intended to apply for a warrant to search the apartment for the marijuana that he suspected was inside. If others in fact remained in the apartment, there was a possibility that they would destroy the evidence before the warrant arrived. In addition, it appeared that some of those who exited were minors. It was therefore prudent to send in officers, both to protect the contraband from anyone who remained inside and as a precaution in case other minors remained in the apartment ( see People v. Febus, 157 AD2d 380; People v. Evans, 267 AD2d 14; People v. Neutzel, 246 AD2d 477). As I find that the entry of the police was permissible for these reasons, I do not reach the issue whether it was lawful for the police to go into the apartment to retrieve clothing for defendant R., who was arrested in the absence of probable cause.
Accordingly, defendant Tyrell's applications to suppress physical evidence, statements and identification testimony are denied, except as indicated. The application of defendant R. to suppress statements that she gave to the police is granted.