Opinion
2516/2017
07-26-2019
The PEOPLE of the State of New York, Plaintiff, v. Saquan WILLIAMS, Defendant.
The defendant is charged by indictment with Criminal Possession of a Weapon in the Second Degree and related crimes. This Court conducted a combined Mapp/Huntley/Dunaway hearing on July 11, 12 and 16, 2019. The People called two witnesses: Police Officer Brian Mulkeen, and Detective Daniel Beddows. The defendant called one witness, retired Police Officer Thomas McCall. The Court finds all witnesses to be credible. Following the hearing, the motion to suppress is denied in all respects.
FINDINGS OF FACT
On October 17, 2017, Officer Mulkeen, a seven year veteran of the New York City Police Department, and Detective Beddows, a nineteen year veteran of the police department, were assigned to a plain clothes anti-crime unit in Bronx County. Sergeant Barberas and Officer Figueroa were also part of the same team. Detective Beddows drove all four officers in an unmarked police vehicle. Their assignment that evening included gaining intelligence about crimes involving possession and use of firearms. Officer Mulkeen had participated in more than a thousand arrests; Several dozen of these arrests involved possession of a firearm. Detective Beddows had participated in about 150 firearms-related arrests.
That evening, at about 11:20 p.m., Detective Beddows was driving on Eastchester Avenue. A 2017 blue Honda was illegally parked near the intersection closest to 3001 Eastchester Avenue. The front of the Honda protruded past the line for the crosswalk and part of the front of the vehicle was in the crosswalk itself. The vehicle was approximately one to two feet into the crosswalk. Officer Mulkeen told Detective Beddows to stop the car, which he did. The officer's car was now parallel to the blue Honda. Officer Mulkeen exited the rear passenger seat of the vehicle, and Officer Figueroa exited the front passenger seat of the police vehicle. None of the officers drew their weapons at any time. Defendant sat behind the wheel on the driver's side of the Honda. Shakim Pope was in the front passenger seat. Officer Figueroa shone his flashlight into the car and, as he did, he walked around the front of the car to the passenger side of the Honda, which was next to the sidewalk. Officer Mulkeen approached defendant, who was seated with the windows closed. As he approached the defendant's side of the vehicle, Officer Mulkeen, who is six feet, five inches tall, looked down and observed a bulge which he believed "resembled a firearm" in the defendant's front waistband. As the Officer got closer to the defendant, over a period of about 30 seconds, the defendant placed his hands into the front of his waistband, first adjusted the object, and then pushed the object which made the waistband bulge deep into the defendant's crotch area and forward. Based on his experience and training, Officer Mulkeen, knew that the "area of the groin is a very common place where people carry firearms." Moreover, "any motion" the person makes in this area when police officers approach in this scenario are "more heightened" for a trained officer to notice "because it's a safety issue." In addition, Officer Mulkeen was aware of "recent shootings" in the area of 3001 Eastchester Avenue. The officer described the location as a "shooting prone area."
After making these observations, Officer Mulkeen opened the driver's side door of the car and directed the defendant to get out. As he did so, Officer Mulkeen smelled "a strong odor or marihuana" coming from inside the passenger compartment of the vehicle. Officer Mulkeen then frisked the outside of the defendant's pants in the groin area, where the bugle was now located. The officer felt a hard, cylindrical object that seemed to be the size of a roll of nickels. Officer Mulkeen believed that what he felt during the frisk was the barrel of a gun. The officer then reached into the defendant's groin area, and removed the item that made the bulge and felt like the barrel of a gun. What he recovered was a large quantity of marihuana in a plastic bag. Some of the marihuana was actually package in cylindrical tubes which were several inches long. The officer asked the defendant, in substance, whether there was anything else in the car that the officer should know about. The defendant told him that Pope had gone into the trunk and put his sweatshirt into the trunk, but the defendant did not know what else Pope placed in the trunk. Defendant was placed in handcuffs sometime after making the statement.
The People introduced the items recovered from the defendant into evidence at trial. The tubes which contained the marihuana are of a size and shape that is completely consistent with the size of a small handgun.
At that point, Detective Beddows and Sergeant Barberas began searching the passenger compartment "for any more narcotics or anything in the cab of the vehicle." After a thorough search of this area, including opening the glove box and any other compartments, they did not find any contraband. Defendant and Pope, who at this point were outside the car and standing at the rear by the trunk area while the officers searched the passenger compartment, were placed back into the car for the safety of the officers who then searched the trunk. Defendant and Pope were guarded by Officers Mulkeen and Figueroa. Detective Beddows and Sergeant Barberas then opened the trunk and began searching it. Sergeant Barberas lifted up the area around the tire well. A blue and black closed, checkered bag was "stuffed" in the tire well area. Sergeant Barberas removed the bag from the well and "felt what was a firearm." He unzipped the bag and removed the firearm, a 9mm pistol, from the bag.
The officers called for backup. The Honda was driven back to the 47th Precinct. Defendant was taken there as well. After his arrest processing, at about 2:00 a.m., defendant was taken from his cell and debriefed by Detective Beddows and another police officer at the precinct. A video recording was made of this interrogation. Defendant appears relaxed as he speaks with the officers. They offer him a cigarette, and he begins smoking. The detectives read the defendant his Miranda warnings, and he agreed to speak with them and does not request counsel. The interrogation lasted about 20 minutes. Defendant stated, in substance that he knew Pope through another friend, and that Pope had called him up. Defendant said he picked Pope up somewhere on Fordham Road. He said Pope had a green/black backpack. Defendant acknowledged that he had "weed" in his waistband when he met up with Pope. He acknowledged that the "weed" was packed in "four vials" as well as in bags. Defendant said the car he was driving belonged to him. He denied ownership of the gun.
Later that same morning, at about 10:00 a.m, defendant was taken to the Bronx District Attorney's Office, and was once again interrogated. This interrogation was also recorded on video. Defendant does not appear tired or distressed. ADA Erin Ross read defendant his Miranda warnings, and once again agreed to make a statement, and did not request counsel. Defendant said, in substance, that he was talking with his friend Shakim about going to a "Biker Party" near 3001 Eastchester Avenue. He stated that police officers came up to him and searched the car. The defendant said that the gun recovered was not his gun and that he had not seen it before. He doubted that his DNA would be on the gun.
Shortly after the arrest, Thomas McCall, and investigator with the Legal Aid Society, went to the location where the vehicle had been searched. McCall might have taken some pictures during that time. His main assignment was to look for video surveillance footage. He returned to the location on March 25, 2019. At this time, he and another investigator took photographs and he made measurements of the scene. When shown a photograph purporting to depict the area of the crosswalk, McCall was unable to say that this March 25, 2019 photograph fairly and accurately represented how the location appeared in October 2017, a year and a half earlier.
The Legal Aid Society was assigned to represent co-defendant Pope in this case. Pope absconded during the pendency of the action and was still unapprehended at the time of this hearing. Defendant called McCall as his own witness in this case.
CONCLUSIONS OF LAW
The police action in this case was justified at its inception and at no point exceeded the scope of the information known at the time to the officers. First, when they officers observed the front of the car protruding into a painted crosswalk at an intersection, they had an objective credible reason to approach the vehicle and request information, including the driver's license and the vehicle registration. See People v. Ruiz , 100 Ad3d 451 (1st Dept 2012). As Officer Mulkeen got out of his car to approach the driver to request information, the circumstances of this street encounter grew increasingly dangerous for the officer. First, this highly trained and experienced officer observed a bulge in the defendant's waistband, which he testified "resembled a firearm." While he did not elaborate on the shape of the bulge during direct examination, defendant never cross-examined him about that aspect of his observation. As the officer testified, and as the law recognizes, experience tells us that a bulge in a waistband is specifically indicative of a gun. See People v. Benjamin , 51 NY2d 267, 271 (1981) ; People v. DeBour , 40 NY2d 210, 221 (1976).
Even if this information at this point would have only led to the officer having a "common-law right to inquire," the defendant's subsequent furtive behavior, in particular with regard to the large waistband bulge, provided the officer with reasonable suspicion to believe the object he observed in the defendant's waistband was a gun, and therefore justified a frisk. See People v. Mims , 32 AD3d 800 (1st Dept 2006). This included first adjusting the waistband bulge, and then reaching into his waistband and pushing the object which was causing the bulge deeper into his crotch. See People v. Brown , 277 Ad2d 107, 108 (1st Dept. 2000). The fact that the officer observed all of this as defendant was seated in his parked car made the situation all the more dangerous to Officer Mulkeen and the other officers at the scene. See People v. Mathis , 167 AD2d 221, 222 (1990). Accordingly, at that moment, the officer had a legal right to frisk the defendant for his own safety as well as the safety of the other police officers. Id. The fact that Officer Mulkeen knew this was a "shooting prone location" only added to the already substantial safety concerns he was facing at the time.
Moreover, the defendant was seated behind a closed car door, with the window closed, making the situation even more perilous, and making it impossible for the officer to frisk the defendant as he sat in the car. Officer Mulkeen's decision to open the car door and remove the defendant from the car in order to conduct the pat-down was a "minimally intrusive safety precaution" under these circumstances. See People v. Funderbunk , 122 AD3d 515, 516 (1st Dept 2014). The pat down was limited to the area where the bulge was now present, in the defendant's crotch. During the pat-down, the officer felt a hard, cylindrical object which he believed was the barrel of a gun. That gave him probable cause to search the defendant's crotch area. See People v. Davenport , 9 AD3d 316 (1st Dept 2016).
The officer removed a large quantity of marihuana that in its very bulk as well as the way in which it was packaged would have easily have created a readily observable bulge in anyone's waistband and crotch area. Significantly, some of the marihuana was packaged in hard plastic cylindrical tubes that, during a pat-down, would lead a trained officer to reasonably suspect that the waistband bulge was in fact a gun. The physical evidence therefore fully supports the officer's credibility, as well as justifies his actions.
The statement defendant made at the scene immediately after the recovery of the marihuana — that he had seen the passenger put something in the trunk but he was not sure what it might have been — was in response to routine, investigative questioning and therefore not subject to suppression. See e.g. People v. Chestnut , 51 NY2d 14 (1980) ; People v. Harris , 272 AD2d 225 (1st Dept 2000) ; See also People v. Bennett , 70 NY2d 891, 893-94 (1987).
Defendant specifically challenges Officer Mulkeen's actions. Most of his arguments are based on a challenge to the officer's credibility, and in particular the testimony that the car was over the crosswalk line. He introduced a video taken by a privately-owned surveillance camera at the time of the incident, which shows the car, the crosswalk, and the actions of the police officers. That video, which was obtained within days of the arrest, was not turned over until Officer Mulkeen was in the middle of his cross-examination. This was a flagrant and purposeful violation of the discovery statutes which require defense attorneys as well as prosecutors to provide this evidence upon demand when it exists, is in their custody, and they intend to use it in court. The defense position is that the tape shows that the defendant's car was not in the crosswalk, and that not only makes the officer's testimony incredible, but provides grounds to challenge the validity of the police encounter at its inception. Given this position, and the legal arguments, the Court flatly rejects the defense claim that they only decided to use the video after they had already spent significant time cross-examining Officer Mulkeen. He, of course, had never viewed this video, and it might have been difficult for the defense to lay a foundation that the tape was complete and had not been altered. Nonetheless, after viewing the tape, the People stipulated to its admissibility for the purposes of the hearing only, and it was then played for Officer Mulkeen when cross-examination resumed.
Officer Mulkeen acknowledged one error in his direct examination after viewing the video. He had testified that he was sitting in the front passenger seat of the car, where the video shows that he was seated in the rear passenger seat. He testifies that he rarely sits in the rear passenger seat because of his height, and that his recollection on this score was incorrect. The Court credits that explanation. Moreover, the Court finds that the video essentially corroborates every aspect of the police testimony about what transpired after the officers stopped their car and approached the Honda. As far as the claim that the video does not show the Honda protruding into the crosswalk, the most conservative finding is that it is, at best, inconclusive because it is taken at an angle from behind the vehicle, and only on the passenger side. As Officer Mulkeen credibly testified when repeatedly questioned about the position of other objects in the video and their spatial relation to the Honda, the view is distorted by the camera and its angle of vision. However, after carefully viewing the video, and looking at how it portrays the position of the car in relation to the crosswalk line, this Court finds that part of the front of the car is within the crosswalk.
The defense also specifically challenges the application of the "automobile exception" to the search warrant requirement, under which the officers searched the car and the trunk. He argues that the "automobile exception" has been narrowed in light of the Supreme Court's ruling in Arizona v. Gant , 556 U.S. 332, 345 (2009). Under the automobile exception, police officers are permitted to search the interior of a motor vehicle, closed containers in the vehicle, and the trunk of a vehicle and any closed containers therein if there is probable cause to believe a vehicle contains evidence of criminal activity or contraband. United States v. Ross , 456 U.S. 798, 824 (1982) ; People v. Blasich , 73 NY2d 673, 678 (1989) ; People v. Belton , 55 NY2d 49, 55 (1982). In this case, Officer Mulkeen detected a strong owner of marihuana coming from the passenger compartment of the vehicle as soon as he opened the driver's side door. The defendant had a significant quantity of marihuana in his personal possession. Therefore, under the automobile exception, the police officers at the scene had a right to search the entire vehicle for any additional marihuana, because probable cause existed that the vehicle would contain additional marihuana. The fact that Detective Beddows testified that the purpose of the search was to look for other evidence in addition to drug evidence is irrelevant. He had every right to search for marihuana.
The Gant decision does nothing to undermine the automobile exception, because the legality of the search in that case was not analyzed only under the automobile exception. In Gant , the Court was faced with the question of whether a police officer can conduct a search of a vehicle incident to an arrest "when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Gant , 556 U.S. at 346. The Gant limitation of the scope of the search of a vehicle "incident to arrest" has no applicability to the automobile exception. See e.g. People v. Dixon , 107 AD3d 530 (1st Dept 2013) ; People v. Newman , 96 AD3d 34, 40 (1st Dept 2012) ; People v. Green , 100 AD3d 654, 655-56 (2nd Dept 2012).
Given, all this, the defendant's motion to suppress physical evidence is denied. The motion to suppress the custodial statements at the 47th Precinct and the Bronx District Attorney's Office is denied as well. Defendant was fully advised of his Miranda rights prior to each interrogation, and voluntarily agreed to speak with the police and then the ADA without a lawyer. He appears lucid and not at all tired in either video. There is no evidence that defendant was threatened in any way to make these statements, nor was he promised anything in return for making these statements. Thus, the People have satisfied their burden that these statements were voluntarily made. See e.g. , People v. Thomas , 22 NY3d 629 (2014) ; People v. Guilford , 21 NY3d 205 (2013) ; People v. Anderson , 42 NY2d 35 (1977).
This constitutes the Decision and Order of the Court.