Opinion
10 Cr. 934 (RPP).
January 6, 2011
OPINION AND ORDER
Defendant Rolland Hooks, charged in a one count indictment of possession of a weapon by a convicted felon in violation of 18 U.S.C. § 922(g)(1), moves to suppress certain physical evidence obtained by New York City police officers in conjunction with Defendant's arrest on September 3, 2010, as well as statements made by the Defendant following his arrest.
Defendant was arraigned in this Court on October 14, 2010. On November 9, 2010, Defendant filed a motion to suppress, to which the Government responded on November 22, 2010. A suppression hearing was held before this Court on November 30, 2010, and post-hearing briefs were filed by the Defendant on December 14, 2010 and by the Government on December 15, 2010.
BACKGROUND
I. The Hooks Affirmation
In support of the motion to suppress, Defendant Rolland Hooks submitted a sworn affirmation dated November 4, 1010, which states, in pertinent part, as follows:
"2. On September 3, 2010, at about 11:58 P.M., I was sitting on a bench in the vicinity of 1000 Simpson Street, Bronx New York.
3. I was approached by police officers who were dressed in uniforms.
4. There was a plastic cup which contained cranberry juice and alcohol next to me.
5. I was asked about a domestic dispute which had occurred at that location and I responded to this question.
6. I was then asked for ID and I said I didn't have any.
7. One police officer ordered me to stand up and asked if I had anything on me. I understood that they were referring to drugs or a weapon. The police officer then began to search me. It was evident that I was not free to leave.
8. As he began to lift up my shirt from my waist area, I said that I had a gun. He pulled a firearm from my waistband. I was then handcuffed and formally placed under arrest.
9. I was taken to the police precinct and questioned several hours later."
(Affirmation of Rolland Hooks ("Hooks Aff.") at ¶¶ 2-9.)
II. Hearing Testimony
At the November 30, 2010 suppression hearing, the Government presented two witnesses, Police Officer Grey Santana and Police Officer Danny Aquino. The Defense did not call any witnesses. Officer Santana has been employed by the New York City Police Department ("NYPD") as a Police Officer for close to three years, and is assigned to "conditions" which addresses quality of life offenses, including public drinking. (November 23, 2010 Suppression Hearing, Tr. at 3.) Police Officer Danny Aquino has been employed as a Police Officer by the NYPD for nearly 6 years, and is also assigned to the conditions team. (Tr. at 37-38.) The officers testified as follows.
A. Testimony of Officer Grey Santana
On direct examination, Officer Santana testified that during the evening of September 3, 2010 he, Officer Danny Aquino, and Sergeant Robert Rodriguez worked together as members of the conditions unit in the South Bronx. (Tr. at 3-4.) Officer Santana worked the 6:00 p.m. to 2:00 a.m. shift that evening. (Id. at 4-5.) At some point during his shift, Officer Sananta was informed by other officers of an incident involving disorderly groups in the area of 1000 Simpson Street in the Bronx. (Id. at 5.) In response, Officers Sananta, Aquino and Sergeant Rodriguez drove to the vicinity of 1000 Simpson Street in an unmarked patrol car. (Id. at 4, 5.) All three officers were in uniform. (Id. at 4.) Officer Aquino drove the vehicle, while Officer Santana occupied the front passenger seat and Officer Rodriguez occupied the rear passenger seat. (Id. at 5.)
When the car approached 1000 Simpson Street, at approximately 11:40 p.m. on September 3, Officer Santana observed a "large group sitting on the benches." (Id. at 5-6.) Officer Santana testified that he saw a group of seven or eight people. (Id. at 5.) Among this group of individuals, Officer Santana observed the Defendant, who was drinking from a cup. (Id. at 6.) Officer Santana saw other individuals in the vicinity drinking from bottles. (Id.) Officer Santana was unable to tell, from the patrol car. what was in the cup or in the bottles. (Id.)
The officers then exited the vehicle and approached the individuals. (Id. at 7.) The officers first approached the Defendant and another individual, who were sitting on the same bench. (Id.) As they approached, Officer Santana saw the Defendant and the other individual put their drinks on the ground. (Id.) Officer Santana testified that the Defendant had been holding a plastic cup. (Id.) Officer Santana testified that as he approached the Defendant he could smell "strong odor coming out of [the cup]" that indicated it contained alcohol. (Id. at 7.)
Officer Santana then asked the Defendant for his identification, so that he could issue a summons for violating the open container law. (Id. at 8.) The Defendant responded that he didn't have any identification. (Id.) Officer Santana testified that he then asked the Defendant whether he had been drinking, and the Defendant responded, "yes, it is some liquor that some lady gave me. I don't know what it is but it is mixed with juice." (Id. at 17.) Officer Santana then proceeded to speak with the other individual seated on the bench, because his partner, Officer Aquino, was interacting with Hooks. (Id. at 8-9.) He heard Officer Aquino tell the Defendant to stand up, and saw the Defendant stand up. (Id. at 9.) He then saw Officer Aquino place the Defendant under arrest, and Officer Santana read the Defendant his Miranda rights. (Id.) Officer Santana then brought the Defendant back to the precinct house, where he made a statement to the police. (Id. at 9-10.) At the precinct house, Officer Aquino gave Officer Santana a gun that was recovered from the Defendant so that Officer Santana could voucher it. (Id. at 10.)
Officer Santana testified that it is the NYPD's policy that when individuals are found drinking open containers of alcohol and they cannot produce identification, they are brought to the police precinct so that the police can ascertain their identity and issue the summons. (Id. at 8.)
On cross-examination, Officer Santana explained that from the patrol car, he observed the Defendant drinking from the cup and that the other individual seated on the same bench was holding a bottle. (Id. at 13-14.) When he approached the bench, Officer Santana was able to observe that the bottle contained beer or alcohol. (Id. at 14.) When he was about two feet away from the Defendant, he could also smell alcohol in the air coming from the Defendant's cup. (Id. at 15, 20.) Officer Santana also testified that when he asked the Defendant whether he had identification and the Defendant replied that he didn't have any, he could "smell it coming out of his breath — a strong odor of alcohol." (Id. at 16.) Officer Santana reiterated that after the Defendant said he did not have any identification, Officer Santana asked him "were you drinking," in order to make sure there was liquor in the cup, and the Defendant responded "yeah, yes I was." (Id. at 17, 23.) At the time of this conversation, Officer Aquino was standing next to Officer Santana. (Id. at 17.) Officer Santana then heard Officer Aquino speak to the Defendant and order the Defendant to stand. (Id. at 22.)
On re-cross, Defendant's counsel asked additional questions regarding Officer Santana's ability to smell alcohol from the cup. (Id. at 34.) Officer Santana described the cup as a plastic "normal size" cup, and testified that he could smell "strong liquor mixed with juice. It was easy to tell that liquor was coming out." (Id. at 34-35.) Officer Santana testified that the odor he smelled was "just different . . . a different odor, stronger" than the odor of beer. (Id. at 36.)
B. Testimony of Officer Danny Aquino
On direct examination, Officer Aquino testified that on the evening of September 3, 2010, he was working the 6:00 p.m. to 2:00 a.m. shift with Officer Santana and Sergeant Rodriguez. (Id. at 38.) At some point that evening, Officer Aquino became aware of an incident in the vicinity of 1000 Simpson Street in the Bronx, and drove the patrol car to that location with Officers Santana and Sergeant Rodriguez. (Id. at 39.)
Officer Aquino testified that when they arrived, he observed a group of individuals with "alcohol beverages," including a Corona bottle. (Id.) He observed approximately six individuals at the location, including the Defendant. (Id.) Officer Aquino observed that the Defendant was sitting next to a Corona bottle. (Id. at 40) The Officers then exited the vehicle and approached these individuals "to verify that they had open containers with them to issue them summonses." (Id.)
Upon approaching the Defendant, Officer Aquino observed a Corona bottle and a clear plastic 6-8 ounce cup on the bench. (Id. at 41.) Officer Aquino was unable to tell what was in the cup. (Id.) Officer Santana spoke to the Defendant first, but Officer Aquino was unable to testify as to what Officer Santana said. (Id. at 42.) Officer Aquino next heard the Defendant say "I have no I.D." (Id.) Officer Aquino then asked the Defendant to stand up, because "he had stated he had no I.D." (Id. at 42.) Officer Aquino testified that after the Defendant stood, "he was stating that some lady had given him the alcohol beverage." (Id.)
After Defendant stood up, Officer Aquino observed a bulge in his front waistband. (Id. at 43.) He then placed his hand on the bulge, and felt a hard object. (Id.) Officer Aquino asked Defendant "if he had anything illegal on him," and Defendant responded "yes, I have a gun." (Id.) After Officer Aquino heard this response, he retrieved the gun and placed the Defendant under arrest.
On cross-examination, Officer Aquino explained that when the officers exited the vehicle and initially approached the Defendant, he was about two feet behind Officer Santana. (Id. at 44.) Defendant's counsel asked whether Officer Aquino heard Mr. Hooks say anything between the time he approached Defendant and when he placed Defendant under arrest, other than Defendant's statement regarding carrying a gun, and Officer Aquino explained that "when he stood up he was mentioning that some lady had given him the alcohol." (Id. at 48.) At the time Defendant made that statement "he was still responding to Santana's questions." (Id. at 49.)
DISCUSSION
In support of suppression, Defendant contends that the firearm seized by the police was the product of an illegal search, because the officers did not have probable cause to search his clothing or arrest him. (Def.'s Mem. in Supp. at 5.) Defendant asserts that the officers were required to have probable cause before seizing the weapon, because "the circumstances of the encounter constituted an intrusion that far exceeded the boundaries of an investigatory detention under Terry." (Id.) Defendant also argues that any subsequent statements made by the Defendant constitute "fruit of the poisonous tree" and should be excluded accordingly. Wong Sun v. United States, 371 U.S. 471 (1963). (Def.'s Mem. in Supp. at 7.) In response, the Government asserts that the police had probable cause to arrest the Defendant for violating the New York City Open Container Law, N.Y.C. Admin. Code § 10-125(b), and that the search was a valid search incident to arrest under United States v. Robinson, 414 U.S. 218 (1973). (Govt.'s Mem. in Opp. at 3-7.) The Government also argues, in the alternative, that the gun was uncovered in conjunction with a brief "investigative detention" and frisk as authorized by Terry v. Ohio, 392 U.S. 1 (1968). (Govt.'s Mem. in Opp. at 7-12.)
A search incident to a lawful arrest is a well-settled exception to the warrant requirement of the Fourth Amendment.Robinson, 414 U.S. at 224. "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." Id. at 235. A search incident to arrest conducted immediately prior to formal arrest is also valid, so long as probable cause existed prior to the search. United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974);Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). Therefore, if the gun was seized from Defendant as part of a search incident to arrest, the admissibility of the evidence turns on whether the officers had probable cause to arrest the Defendant at the time of the search.
"A warrantless arrest is justified where the officers have probable cause to believe that an offense has been or is being committed." United States v. Fox, 788 F.2d 905, 907 (2d Cir. 1986). A police officer has probable cause where "on the basis of the totality of the circumstances, [the officer] has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). Probable cause determinations involve "an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken."United States v. Scopo, 19 F.3d 777, 783 (2d Cir. 1994) (quotingMaryland v. Macon, 472 U.S. 463 (1985)). If the arresting officer had probable cause to believe an offense was being committed, and "was authorized by state or municipal law to effect a custodial arrest for the particular offense, the resulting arrest will not violate the fourth amendment." Id. at 784.
Section 10-125 of the N.Y.C. Admin. Code states that drinking alcohol in public, or possession of an open container containing an alcoholic beverage, with the intention of drinking it in public, is a violation, punishable by a fine or up to 5 days' imprisonment. See N.Y.C. Admin. Code § 1-125(b), (e). The relevant portions of the code state:
A cup containing an alcoholic beverage has been held to constitute an open container. See People v. Martin, 50 A.D.3d 1169, 1170-71; 854 N.Y.S.2d 789, 791-92 (N.Y. App. Div. 3'd Dept. 2008).
b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast, or similar function for which a permit has been obtained.
c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section.
N.Y.C. Admin. Code § 10-125.
Under New York law, probable cause to arrest someone for violation of Section 10-125(b) depends on the totality of circumstances at the time of the defendant's arrest. "which takes into account the `realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents.'" People v. Bothwell, 261 A.D.2d 232, 234; 690 N.Y.S.2d 231, 234 (N.Y. App. 1st Dep't 1999).
In this case, in view of the totality of the circumstances, the officers had probable cause to believe that Defendant was violating the open container law. Officers Santana and Aquino are both assigned to the conditions unit, where their responsibilities include patrolling for open container violations. (Tr. at 3, 37-38). Upon arriving at the scene, Officer Santana observed the Defendant drinking from a plastic cup while sitting on an outdoor bench with a group of people consuming drinks in bottles. (Id. at 6.) Officer Aquino identified one of these bottles as a Corona beer bottle. (Id. at 39.) As the officers approached the Defendant, Officer Santana testified that the Defendant put the drink down. (Id. at 7.) Officer Aquino testified that he observed a Corona bottle and a clear plastic cup on the bench next to Defendant. (Id. at 41.) Officer Santana testified that he was able to smell liquor coming from the cup, and distinguished the odor of "strong liquor" that he smelled from the odor of beer. (Id. at 7, 36.)
At the suppression hearing, Defendant's counsel devoted much of his cross-examination of Officer Santana to challenging Officer Santana's ability to smell the odor of alcohol from a small cup that also contained juice. (Id. at 15-16, 34-35.) Officer Santana also testified, however, that when he asked the Defendant for his identification and the Defendant responded that he didn't have any identification, he could smell a strong odor of alcohol on Defendant's breath. (Id. at 16.)
Officer Santana testified that he asked the Defendant whether he had been drinking, and the Defendant responded "Yeah, yes I was." (Id. at 17), and "it is some liquor that some lady gave me, I don't know what it is but it is mixed with juice." (Id. at 8.) Officer Santana testified that he asked Defendant whether he had been drinking before Officer Aquino ordered the Defendant to stand up. (Id. at 22.) Officer Aquino testified that "when [Defendant] stood up, he was mentioning that some lady had given him the alcohol." (Id. at 49.) Officer Aquino further explained that he did not know what Santana had asked him when he gave that answer, but that Defendant "was still responding to Santana's questions" at the time he stood. (Id.)
Officer Aquino's and Officer Santana's accounts of the pertinent events of this encounter are largely identical, and Defendant's affirmation does not introduce any basis on which to discredit their testimony. Indeed, the affirmation states that the cup contained cranberry juice and alcohol. (Hooks Aff. at ¶ 4.) Considering the totality of the circumstances, the officers had probable cause to believe Defendant was violating the open container law at the time Defendant was ordered to stand so that he could be placed under arrest.
Officer Aquino ordered Defendant to stand in order to arrest him for violating the open container rule. (Tr. at 42.) When Defendant stood, Officer Aquino observed and seized Defendant's gun. (Id. 42-43.) Because the arrest was justified by probable cause, Officer Aquino's search of Defendant and subsequent seizure of Defendant's weapon, conducted in conjunction with the arrest, require no separate justification. Robinson, 414 U.S. at 235. Thus, Defendant's motion to suppress is denied.
IT IS SO ORDERED.