Opinion
2565-2016
11-19-2019
PEOPLE of the State of New York, v. Walter ALSTON, Defendant.
Counsel for the defendant: Michael Nedik Assistant District Attorney Melissa Fabi
Counsel for the defendant: Michael Nedik
Assistant District Attorney Melissa Fabi
Miriam R. Best, J.
For the reasons that follow, defendant's motion to suppress a firearm, ammunition and statements is denied.
Background
Defendant is charged with Criminal Possession of a Weapon in the Second Degree (PL § 265.03[3] ), Unlawful Possession of Ammunition (A.C. § 10-131[i][3] ) and related offenses. On March 28, 1917, this court ordered a Huntley/Mapp/Dunaway hearing, which the court conducted beginning on October 24, 2019. At the hearing, the People called Police Officer Michael Espenberg, Detectives Jason Baker and Kyle Flood and former Assistant District Attorney Sharon Adler. Defendant called Police Officer Kenia Acosta. The People also introduced various exhibits, including videotaped statements to Baker and Adler, which I have watched. I found the witnesses credible to the extent indicated below. Based on the credible evidence introduced at the hearing, I make the following findings of fact and conclusions of law.
The Hearing Testimony
The People's Case
On the morning of August 5, 2016, Espenberg and Acosta were working anti-crime in the 44 Precinct (H 37). At approximately 12:30 am, they received a radio run following a 911 call that "said there was a female, tall, light skinned and a male with braids and glasses in front of the building" at 1436 Clay Avenue, Bronx, and that "[t]he female had a gun." The caller also said that there was a black car with tinted windows in front of the building (H 37-38, 47, 51, 52).
Espenberg never received any information on the 911 call that the male possessed the gun or about the male's involvement with the gun (H 48-49). (Parenthetical references preceded by an "H" refer to the hearing minutes.)
As they drove to the location, Espenberg told Acosta to call the 911 caller "to see if they were still in front" (H 38). Acosta did so. Espenberg could not hear what the caller told her, but Acosta told him that the 911 caller added that the male and female were black (H 38, 60-61).
The People did not offer the 911 call itself or any Sprint report in evidence at the hearing.
When the officers arrived at the building, Espenberg saw a black car with the engine running, double-parked on the street in a traffic lane in front of 1436 Clay Avenue. No one was in the car (H 38, 39, 40, 41, 50). Espenberg drove past that car and Acosta told him that she saw two people in front of the building who fit the caller's description. Espenberg drove down the street, made a U-turn and double-parked his car in front of the black double-parked car (H 38-39). When Espenberg got out of the police car, he saw four people on the sidewalk in front of the building, about a car's length away from the double-parked car, two of whom fit the caller's description (H 39, 53-54). The male with the glasses and braids was later identified as defendant (H 37-38, 39-40).
He and Acosta were the first car on the scene, although other officers, including his sergeant, arrived later (H 55-56).
Espenberg testified that when he got out of the police car he went to the back of the double-parked car (H 40). He did not say on direct examination that he approached defendant and the others before going to the suspect car, but on cross-examination he indicated that he did so (H 54-55). In any event, whether Espenberg was standing near defendant or near the double-parked car, he testified that the police "asked who the car belongs to and [defendant] said he didn't know who it belonged to, that possibly the person ran inside the building real quick" (H 40). Indeed, all four people denied knowing who the car belonged to (H 50-51). No officer had drawn a weapon on defendant when he made this statement, and he was not under arrest (H 40-41).
On cross-examination, Espenberg was asked, "now it's your testimony you approached Mr. Alston and asked him whose car it was, he said he didn't know who it belonged to?" Espenberg answered "yes" (H 54-55).
On cross-examination, Espenberg testified that his partner, "PO Acosta," "questioned [defendant] about the car," that "I don't think she questioned him at all either," and that his "partner" "asked Mr. Alston whose car it was" (H 55). Curiously, Espenberg also testified on cross-examination that when he arrived at the scene, it was more important to investigate the double-parked car than the report of someone with a gun, "because the double parked car had something to do with the gun" (H 51) and "at the time, we didn't know anybody had a gun, we just thought maybe it was a noise complaint," even though the 911 call said "woman with gun" (H 52).
After defendant made the statements about the car owner possibly having gone back inside, Espenberg went to the back of the double-parked car, "to run the plate with my NYPD phone" (H 41). Accessing both a New York DMV database and an NYPD database to get information about the license plate on the back of the car, he learned that the car belonged to a Walter Alson and also got the VIN number (H 41). In order to check that number against the VIN number in the car itself, Espenberg went to look for it "on the driver's side, lower left wheel above the car" (H 41-42). While he was using his flashlight to read the letters and numbers of the VIN number, Espenberg saw something shiny sitting on the front seat of the car, so he moved over to the driver's side door and, using his flashlight, saw a cell phone and a gun on the seat (H 42). He then went to the front of the car and told Sergeant Gannon, who had arrived on the scene, that "there's a gun on the front seat of the car." Gannon "proceeded to the window from the outside of the front windshield and he looked himself and saw there was a gun in the car" (H 44). Then, using Espenberg's phone, Gannon hit the snapshot tab on the DMV app to get a picture of people who were associated with the vehicle. Gannon showed Espenberg the one photo that appeared and asked if he thought that person looked like defendant; Espenberg testified that it did (H 44, 57). Gannon asked defendant, "who is Walter Alson?" Defendant said that was his father, that the car was registered to his father, and that he — defendant — had permission to drive it. Gannon then said "92," meaning that defendant should be arrested, and defendant was handcuffed (H 45, 59).
He did not open the car door to make this observation (H 42).
Espenberg put defendant into a police car but did not take him to the precinct. Rather, Espenberg remained at the scene and called for the Evidence Collection Team ("ECT"). When they arrived, they recovered and processed evidence and took photographs (H 43, 46-47, 58). A photograph of the firearm and cell phone taken by ECT was received in evidence as People's Exhibit 2. In addition to the cell phone and the firearm, ammunition was also found in the car. One bullet was on the driver's side floor, one bullet was in the glove compartment, and one bullet was on the back seat floor on the passenger's side (H 46, 54). In addition, one bullet was found outside the car on the street (id. ).
I do not understand defendant to be challenging the seizure of this bullet, which was obviously proper and as to which defendant obviously lacks standing.
Detective Kyle Flood had responded to the scene of 1436 Clay Avenue as a back-up to other officers (H 72-73, 76). After defendant was arrested and taken to the 44 Precinct, Flood overheard him making rambling statements while standing inside the lobby of the precinct with the other person who was arrested (H 73, 74, 77, 78). Flood overheard defendant say, in sum and substance, "it was my gun. She stole it from me and I came to steal it back" (H 73). Flood was standing about 10 or 15 feet away from defendant when defendant said this (H 78). Flood told Acosta about the statement (H 79).
Although Flood did not memorialize this statement in any paperwork, the court takes judicial notice that, in the Voluntary Disclosure Form, which is dated August 16, 2016 and attached to the indictment, the People gave notice of the statement to Flood: "It was my gun. She stole it from me and I went to steal it back."
Defendant was thereafter questioned by Detective Jason Baker and Assistant District Attorney Sharon Adler, and those interrogations were recorded. Because defendant has withdrawn any claim that those recorded statements should be suppressed for a Fifth Amendment violation (H 149), it is unnecessary to summarize that testimony here.
The Defense Case
Officer Acosta was working anti-crime in an unmarked police car with Espenberg on August 5, 2016. Espenberg was driving. During their tour, they received "a radio run of a gun run," specifically, that a male and a female had a gun at a particular location (H 112-13, 115). While the officers were driving to the location, Acosta called the 911 caller "to ask for a description of the person with ...the gun and if there was any additional information she could provide" (H 114). The 911 caller told Acosta that "[i]t was a female black, tall, and a male black with glasses and braids." The 911 caller also gave Acosta a description of a vehicle, specifically "[a] dark four-door sedan with tinted windows" (id .).
Acosta's account of the contents of these calls differed significantly from Espenberg's, but I credit Acosta's testimony. She spoke with the 911 caller directly, had more interaction with the defendant and Spence on the scene than Espenberg did, processed the arrests and vouchered both the contraband and the car. She therefore had particular reason to recall what happened.
Espenberg and Acosta arrived at 1436 Clay Avenue within approximately a minute and a half of getting the radio run (H 132). The vehicle that the caller described was in front of the location. It was the only double-parked car on the street other than the police car she and Espenberg arrived in, and no one was inside it (H 115, 131). Acosta also saw four people on the sidewalk in front of the building: a tall black female, who was later identified as Janita Spence, a skinny male with braids and glasses, who was later identified as defendant, a child, and another black male, about six feet tall with a close cut haircut. Acosta did not see anyone with a gun (H 115, 116, 131, 132).
Acosta approached Spence and defendant and asked if they lived in the building. They said they did not. Acosta asked if they were the owners of the vehicle. Spence then said to defendant, "baby, go move your car." In response, defendant "motions, ...turns to the vehicle, he took about two or three steps, he said okay, and then he stopped" (H 117-18). Acosta also testified that within 20 seconds of exiting her police car, she approached defendant and patted down the outside of his jacket pockets to make sure that he was not armed (H 118, 133-35). She did not frisk Spence, because Spence was wearing "a tight bodycon type of dress ...like a tight almost like spandex dress," and Acosta could see that she did not have a gun on her (H 118-19). Defendant also indicated to Acosta that the car was not his. Acosta then asked him and Spence if they knew who the vehicle belonged to, and they told her "that it belonged to someone in the building at 1436 Clay" (H 119-20). Acosta asked them if they could contact the owner, and they said no. Acosta then said that she was just going to have to get the car towed, because it was double-parked and the police were going to have to get it moved (H 120).
Acosta also asked the man with the short hair if the car was his (H 134). I infer from the testimony that he said it was not.
Acosta ran the registration of the vehicle and also asked Spence and defendant for basic pedigree information, because she had stopped them for a gun run and had to get their information in order to do a basic stop report. Defendant said his name was Alston, and the vehicle registration information that Acosta obtained also had the name Alston (H 120). Acosta asked defendant about that, and he told her that it was his father's car, but that his father let him borrow it. Acosta then asked if it was his father's car, why it was "here and not with his father. And then [defendant] just looked at [her], and he was just like, well, okay, yeah, it is my car" (H 121). Acosta testified that at that point she stood there with defendant and Spence until Espenberg, who was over at the double-parked car, came to get her (id .). She and Espenberg then walked to the back of the suspect car, where Espenberg showed her that "[t]here was a gun inside the vehicle" (H 122). At that point, Acosta knew that defendant "couldn't just walk away" and she handcuffed him (H 122, 127). She also arrested Spence shortly afterwards, when Spence said that she had to remove property from the vehicle (H 123, 132-33).
Acosta did not remember if anything else besides the gun was also on the front seat, although she remembered vouchering a phone (H 122). Although Espenberg testified that Acosta learned whose cell phone it was during the investigation (H 49), she did not recall whose phone it was when she testified at the hearing (H 122).
Later at the precinct, Acosta learned that the pedigree information for the registered owner of the car matched defendant's pedigree information (H 56-57, 129-30).
Acosta drove Spence to the precinct while someone else drove defendant (H 123). Defendant was with Flood at the gate, but had not been lodged yet. While Acosta was signing in Spence at the desk, Flood told her that defendant had made a statement. Acosta asked Flood to wait a minute while she finished what she was doing with Spence; then Flood told her that defendant had said that the gun was his (H 124-26).
Acosta did not recall whether defendant said anything else (H 125).
Acosta vouchered the cell phone, the firearm, the ammunition and the car they were found in (H 129). In order to voucher the car, she had to get information about its registered owner. When she did so, she learned that it was registered to defendant (H 129-30).
The Parties' Contentions
Defendant argues that he was "effectively" placed under arrest without probable cause when police arrived at the scene and Acosta frisked him. He urges the court to hold that Acosta's "statement that [he] was free to leave at any time before she placed him under arrest is not believable." Because his arrest was illegal, "everything that flows from there," including the gun that was found afterwards, should be suppressed (H 136). Defendant also argues that Flood's claim that he heard defendant make a statement at the precinct from 15 feet away "is not believable" (H 137).
The People argue that neither the contraband nor the statements should be suppressed. When officers quickly arrived on the scene in response to a 911 call and determined that neither of the people described in the call had a gun, the police had to investigate the empty double-parked car, which matched the description from the 911 call and had been left running on the street, in front of the location given in the 911 call, in violation of New York City traffic rules. Therefore, when Espenberg approached the car to investigate the VIN number, he was in a place he was lawfully allowed to be, from which he saw the gun in plain view on the driver's seat (H 137-39). It was also permissible for Acosta to ask defendant and Spence if they knew whose car it was. Defendant denied knowing whose car it was, then started to move towards it after Spence told him to "move your car," and then ultimately stated that it was his father's car but he was allowed to drive it (H 139-41). Neither the stop nor the search was "bad," and defendant's arrest was based on probable cause (H 140, 142).
The People also argue that the gun would inevitably have been discovered the gun "as [the police] were trying to figure out who . . . the owner of the vehicle is" (H 139).
Moreover, all of defendant's statements in front of 1436 Clay Avenue were not the product of custodial interrogation and were voluntary beyond a reasonable doubt (H 141, 142). The statement he made in front of Flood at the precinct was also not the product of custodial interrogation (H 142).
Conclusions of Law
Police Properly Seized the Firearm
At a Mapp/Dunaway hearing, where a defendant challenges the legality of a search and seizure, the People have the burden of going forward, in the first instance, with credible evidence tending to show the legality of the police conduct. See People v. Berrios , 28 NY2d 361, 367 (1971). Once the prosecution has met this burden, defendant has the ultimate burden of proving by a preponderance of the evidence that the officers acted illegally. People v. Bogan , 15 Misc 3d 1109(A), *2 (Sup Ct. Bronx County 2007) (Dawson, J.); see also People v. Bulgin , 29 Misc 3d. 286, 294 (Sup. Ct. Bronx County 2010) (Best, J.). For the reasons that follow, the People have met their burden of going forward and have established the legality of the police conduct, and defendant has failed to show that the officers acted illegally.
Espenberg's conduct, specifically, approaching the idling double-parked vehicle to check the VIN number and looking through the window, where he saw something shiny on the front seat, simply did not constitute a search within the meaning of the New York State or Federal Constitution. Neither did his action of moving to the driver's side door and looking into the car with his flashlight. People v. Manganaro , 176 AD2d 354, 355 (2d Dept 1991) (walking toward a parked car and looking through the window did not constitute a search under state or federal constitution; " ‘The general public could peer into the interior of [defendant's] automobile from any number of angles.... There is no legitimate expectation of privacy ...shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers' [citations omitted]"), lv denied , 79 NY2d 860 (1992). The firearm was in plain view on the seat of the car.
"Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in a position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent [citations omitted]." People v. Batista , 261 AD2d 218, 220 (1st Dept), lv denied , 94 NY2d 819 (1999). All three conditions were met here. Therefore, Espenberg properly seized the firearm in the car. Moreover, once he saw the firearm in plain view on the seat, Espenberg could properly enter the car to conduct a full blown search and seize the bullets in the car. People v. Simpson , ––– AD3d ––––, 108 NYS3d 893, 893 (2d Dept 2019) (observations of items in plain view provided police with probable cause to search the vehicle without a warrant pursuant to the automobile exception to the warrant requirement). The motion to suppress the firearm and bullets in the car is denied.
Acosta's Frisk of Defendant was Illegal
The Court of Appeals has set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry ... is "activated by a founded suspicion that criminal activity is afoot and permits somewhat greater intrusion" (citation omitted). Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.
People v. Hollman , 79 NY2d 181,184-85 (1992) ; see also People v. Moore , 6 NY3d 496, 498-99 (2006).
The initial radio run described only a man and a woman with a gun at a particular location. When Acosta called the 911 caller directly, she got more details of the man and woman's appearance. But even that fuller description, coupled with Acosta's arrival within two minutes and her observation of two people who fit the description, provided only a founded suspicion that criminal activity was afoot, and provided only a Level 2 common-law right to inquire.
Reasonable suspicion that will permit a stop and frisk requires that an anonymous tip be reliable not only in its description of a suspect's appearance and location but also in its assertion of illegality. Florida v. J.L. , 529 US 266, 273 (2000). Even though Acosta was able to speak directly to the 911 caller, that person never provided any information regarding her basis of knowledge for the assertion that defendant possessed a gun. Accordingly, the radio run did not provide Acosta with reasonable suspicion justifying a stop and frisk. People v. Moore , 6 NY3d at 500 ("the anonymous tip triggered only the police officers' common-law right of inquiry"); People v. Lopez , 63 Misc 3d 1225(A), *6 (Sup Ct., Kings County 2019) (Cyrulnik, J.) ("An accurate description of a subject's readily observable location and appearance ... does not show that the tipster has knowledge of concealed criminal activity.... An anonymous tip authorizes a police officer to make a common-law inquiry. It does not, without more, provide justification to detain or seize an individual [citations omitted]."); People v. Breazil , 15 Misc 3d 493, 497 (Sup Ct, Kings County 2007) ("The law is clear that the police may not stop and frisk a citizen based solely upon information of criminal conduct provided from an anonymous source without other ‘indicia of reliability’ [citations omitted]"), aff'd as modified , 52 AD3d 523 (2d. Dept), lv denied , 11 NY3d 830 (2008). Therefore, Acosta's frisk of defendant's pockets was illegal.
Nevertheless, as explained more fully below, the fact that the frisk was illegal does not require suppression of the statements defendant made at the scene.
The Noncustodial Statements Are Admissible at Trial
For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statement were voluntary. People v. Huntley , 15 NY2d 72, 78 (1965). "The voluntariness of an inculapatory statement must be evaluated by examination of the totality of the circumstances under which it was made. People v. Anderson , 69 NY2d 651 (1986)." People v. Thomas , 20 Misc 3d 1108(A), *5 (Sup Ct, Bronx County 2008) (Sonberg, J.). For the reasons that follow, the People have met their burden of proof as to voluntariness.
"[T]he safeguards required by Miranda are not triggered unless a subject is being subject to ‘custodial interrogation’ (citation omitted)." People v. Paulman , 5 NY3d 122, 129 (2005). "The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave (citation omitted)." (Id. ) In determining whether a suspect was in custody, the Court must consider the amount of time spent with the police, any significant restriction on defendant's freedom of movement, the location and atmosphere of the questioning and the nature of the questioning, namely whether it was investigatory or accusatory.
People v. Garcia , 24 Misc 3d 1227(A), *9 (Sup Ct, Bronx County 2009) (Sonberg, J.).
Espenberg and Acosta were the first officers to arrive on the scene. Acosta questioned defendant while Espenberg went to the back of the suspect car and ran the license plate. Neither officer had his or her weapon out or threatened defendant. Defendant was not handcuffed. There was no evidence at the hearing that he indicated that he did not want to speak with the police or was told that he was not free to leave. Indeed, to the contrary, Acosta made no attempt to stop him from moving towards the car after Spence told him to move it. Acosta asked defendant basic investigatory questions in an effort to determine who owned the car, because it was parked illegally and no one was inside it. Acosta also never questioned either defendant or Spence about a gun or a 911 call. After Acosta learned that the car was registered to "Alston" and that defendant's last name was also Alston, defendant said it was his father's car. When Acosta then asked why the car was there when Alston's father was not, defendant stated that the car was his. Accordingly, defendant was neither in custody nor interrogated when Acosta asked brief investigatory questions about the car. Only after defendant admitted that the car was his did Acosta learn there was a gun in the car.
Significantly, there was no evidence at the hearing that the police made defendant aware of the fact that they had seen the gun in the car before Gannon asked him the single question, "who is Walter Alston?" Even though Gannon's question was designed to elicit an incriminating response, defendant was not in custody at that point. This so despite the fact that Gannon had already indicated to Espenberg that defendant was going to be arrested, because Gannon's subjective intentions were never conveyed to defendant. " ‘A policeman's unarticulated plan has no bearing on the question whether a subject was "in custody" at a particular time ....’ [citation omitted]." People v. Andrango , 106 AD3d 461, 461-62 (1st Dept), lv denied , 21 NY3d 1040 (2013), habeas denied , 2015 WL 4039839 (SDNY 2015).
Finally, Acosta's limited frisk of his jacket did not constitute a forcible seizure so as to make Miranda warnings necessary. Indeed,
Although defendant was seized within the meaning of the Fourth Amendment to the United States Constitution and article I, § 12 of the New York state Constitution during the period of this questioning [citations omitted], he was not, as a matter of law, in custody at this time for purposes of the need to give Miranda warnings. When a seizure of a person remains at the stop and frisk inquiry level and does not constitute a restraint on his or her freedom of movement of the degree associated with a formal arrest, Miranda warnings need not be given prior to questioning [citations omitted].
People v. Bennett, 70 NY2d 891, 893-94 (1987). "[Q]uestioning after a frisk, without more, does not constitute custodial interrogation." People v. Morales , 65 NY2d 997, 998 (1985) (reversing Appellate Division's order affirming suppression, where hearing court erred in holding that, as a matter of law, a person who is frisked is thereafter in custody for Miranda purposes); People v. Morales , 129 AD2d 440, 443 (1st Dept 1987) (reversing lower court's decision after remand again suppressing statements made after defendant was frisked, where "the objective evidence indicates there was nothing more than a frisk, followed by a couple of noncoercive questions, which defendant voluntarily answered."); see also People v. Warren , 124 AD3d 699 (2d Dept 2015) (lower court properly determined that defendant's statement was not the product of custodial interrogation).
In Warren , officers responded to a 911 call reporting that a male black in a red shirt in the driver's seat of a vehicle in front of a location had a gun which he had cocked and placed in a bag. The 911 caller later stated that the man had exited the car without the bag and walked down the block. People v. Warren , Respondent's Brief 2014 WL 9872934, *6. Two officers observed Warren one block away from the reported location of the vehicle, approached him, frisked him for weapons and asked him what he was doing, where he was going and whether he was associated with the car around the corner (id. *9, 10).
Accordingly, the motion to suppress defendant's statements in front of 1436 Clay Avenue is denied in all respects.
The Statement at the Precinct is Admissible at Trial
After defendant's arrest and while he was inside the precinct, Flood overheard him rambling and make incriminating statements, specifically that the gun was his and had been stolen from him and that he came to steal it back. Even when a defendant is in custody, the court will not suppress an incriminating statement that he blurts out when it is not the product of interrogation or its functional equivalent. People v. Hinton , 148 AD3d 545, 546 (1st Dept), lv denied , 29 NY3d 1080 (2017). Here, no officer was asking defendant questions when he made these statements. Moreover, defendant does not claim that the statement was involuntary in the traditional sense of having been coerced from him. Therefore, his motion to suppress these statements for a Fifth Amendment violation is denied in all respects.
Conclusion
For all of these reasons, defendant's motion to suppress tangible evidence and statements is denied.
This opinion constitutes the decision and order of the court.