Opinion
519/14
01-30-2015
The People of the State of New York v. Javante Jones, Defendant
The defendant is represented by Steven Sternberg, Esq. The People are represented by Assistant District Attorney Harold Rosengarten of the Queens District Attorney's Office.
The defendant is represented by Steven Sternberg, Esq. The People are represented by Assistant District Attorney Harold Rosengarten of the Queens District Attorney's Office.
The defendant, Javante Jones, moves to suppress physical evidence and his statements. The defendant is charged in a four count indictment with the crimes of criminal possession of a weapon in the second degree (PL §265.03 (1) (B)), criminal possession of a weapon in the second degree (PL §265.03.3), resisting arrest (PL §205.30) and unlawful possession of marijuana (PL §221.05). A Mapp/Huntley/Dunaway hearing was held before this Court on July 23, 2014, October 1, 2014 and October 3, 2014. The People presented two witnesses, Police Officer Michael Butler and Sergeant Mary Picone. The defendant presented one witness, Kenneth Mitchell. Significant issues of credibility, that directly bear on the suppression issues to be determined by this Court, were raised by the testimony of Police Officer Butler. Furthermore, for reasons discussed in herein, this Court finds the testimony of Kenneth Mitchell to be of limited value with regard to the critical issues to be determined herein. This Court has also considered the non-testimonial evidence including photographs and a DVD recording.
FINDINGS OF FACT
On January 15, 2014, Police Officer (hereinafter P.O.) Michael Butler of the New York City Police Department Anti-Crime Unit, was working the 12:00 p.m. to 8:35 p.m. tour with his partner, P.O. Daniel Haggerty. During this tour, the plain clothes officers patrolled, in an unmarked police vehicle, the surrounding areas of Sutphin Boulevard, Liberty Avenue and 110 Avenue in Queens County. Although the aforementioned location was experiencing a high volume of burglaries, P.O. Butler was not aware of any such crime reported at the time and place in issue in this case.
At approximately 2:50 p.m., P.O. Butler was operating the aforementioned vehicle and traveling northbound on Liverpool Street when he observed the defendant and an unapprehended black male walking on Liverpool Street and South Road. According to P.O. Butler, as he approached the defendant and the male, the men went towards a black gate of a private residence. The officer claimed that he then observed the men looking over the gate as one man (or both men) stood on their "tippy toes" and pulled or "tugged" on said gate(P.O. Butler was unable to tell this Court the address of this residence. P.O. Butler was also unable to tell this Court the distance between himself and men at the time of the initial observation and could not recall the speed in which he was driving).
At no point did P.O. Butler observe any of the men open the gate or enter the fenced in area of the property. There was no evidence presented at this hearing indicating that the gate or fence in question was damaged or that the property in question exhibited any indicia of burglary. There was also no evidence that the officer observed the defendant or the un-apprehended other, possess any items that can be characterized as burglars tools or that can be described as possible contraband obtained from a burglary.
Photographs of the fence in question show a structure consisting of several rows of black bars which are approximately 5 feet in height. Each bar appears to be approximately 3 inches apart from each other and the premises that the bar surrounds is clearly visible through and above the structure.
Upon observing the defendant and unapprehended male at the aforementioned gate, P.O. Butler proceeded to stop his vehicle a few feet away from the men. The officers then exited the vehicle. As P.O. Butler began to approach the defendant and before any words were spoken, the defendant, and presumably the unapprehended other, immediately fled on foot.(PO Butler was unable to tell this Court what if anything happened to the unapprehended male).
P.O. Butler immediately pursued the defendant. The defendant ran a few feet ahead of the officer, repeatedly looking back towards him as he ran. During the pursuit, from approximately 13 or 14 feet away, P.O. Butler claimed that he observed the defendant reaching into the inner breast pockets of his jacket as a substance that he recognized to appear to be loose marijuana, began to fall from the defendant's pockets to the ground. The pursuit ended after less than two blocks of running when, according to P.O. Butler, the defendant slipped and fell.
P.O. Butler caught up to the defendant shortly thereafter at Liverpool Street and 107 Avenue. The officer placed his body on top of the defendant and, with assistance from P.O. Haggerty, attempted to put handcuffs on him. P.O. Butler claimed that at the time he placed handcuffs on the defendant, he did so to arrest him for the loose marijuana he observed falling out of the defendant's pockets during the chase. Without being questioned, the defendant then blurted out, "I have a gun".
P.O. Butler then reached into the inner left jacket pocket of the coat being worn by the handcuffed defendant. There, he recovered a loaded .38 caliber Smith and Wesson firearm. The officer also recovered an opened clear plastic sandwich bag containing marijuana inside the jacket.
By this time, additional police personal had arrived on the scene and the handcuffed defendant was escorted to P.O. Butler's vehicle. The entire encounter, from the time the defendant was initially observed by the officers to the time he was placed in the back of the police car, occurred in a span of approximately three minutes.
At no point did the officer investigate or inquire of the defendant or the unapprehended other whether they lived at the location or whether the occupants of the residence knew either gentlemen. No marijuana was recovered from the ground.
Kenneth Mitchell is an 18 year old man who currently lives at 107-30 Liverpool street in Queens County. He has known the defendant for approximately 3 or 4 years and lives a few blocks away from the defendant's home. The two men have also worked together at McDonalds. The relationship with the defendant and Mr. Mitchell is close, "like a brother". On the relevant date and time, Mr. Mitchell was responsible for caring for his 3 year old nephew. He was sitting on the front steps of his home when he observed the defendant, who he says he had been expecting to visit him, walking towards him on 107 street and Liverpool Street. (Mr. Mitchell was unable to tell this Court whether the defendant was alone or with someone else at this time). From approximately one block away, Mr. Mitchell observed an unmarked black Impala, a vehicle he assumed was a police vehicle, approach the defendant. As the two officers exited the vehicle, Mr. Mitchell saw the defendant take off running. The defendant ran for less than a block when, according to Mr. Mitchell, he saw an officer tackle the defendant to the ground. Despite indicating for this Court on the photographs admitted into evidence a short distance of approximately 3 to 5 feet as the duration of the defendant's flight, Mr. Mitchell maintained that he believed the defendant ran for approximately "20, 30 seconds" before he was caught. It is clear from this Court's inspection of the photographs that given the short distance of the chase, it is impossible that the pursuit lasted for the time period Mr. Mitchell claimed. Of note, on the relevant date and time in question Mr. Mitchell was on probation for robbery. (Mr. Mitchell received a youthful offender adjudication for this matter). Furthermore, Mr. Mitchell did not observe and could not speak to any actions of the defendant or the police prior to the pursuit and thus this Court finds little value in his testimony as to the suppression issues to be determined herein.
Sergeant (herein after Sgt.) Mary Picone is an investigator who has worked for Queens County District Attorney's Office for 19 years. For 7 years she has been responsible for conducting interviews in Queens County central booking and has conducted approximately 10,000 interviews during this time. On January 16, 2014, at approximately 12:50 p.m., after the defendant was fingerprinted and processed for the aforementioned charges, Sgt. Picone requested that a correction officer remove the defendant from the pens. He was then brought to the central booking interview room. A DVD recording of said interview was admitted into evidence.
This Court credits the testimony of Sgt. Picone that the video recording is a complete and accurate recording depicting the interview conducted with the defendant on January 16, 2014, in its entirety.
Before the interview began, the defendant was informed of the charges and advised of his rights under Miranda. He agreed to speak and stated, in sum and substance, that he ran from the police because he had marijuana on him and was on probation. The defendant claimed that minutes before his arrest he had taken a jacket from a friend's house, put it on, and walked outside with that friend. The defendant claimed that at the time he tried the jacket on, he was not aware that a gun was inside the sleeve and only felt the weapon after the officers accosted him. The defendant denied any knowledge and ownership of the weapon and denied making any statements which referred to him having a gun. He claimed the told the police he ran because he "had marijuana on him". He denied ever saying he had a gun because "who would say that?".
After careful consideration of the arguments in the motion papers submitted by the parties, the court record, a review of the all admitted evidence and the appropriate statutory and case precedent, this Court finds as follows:
CONCLUSIONS OF LAW
The Court of Appeals in People v DeBour, 40 NY2d 210 (1976) outlined four levels of police intrusion and degree of knowledge needed to justify each level. To briefly review:
Right to approach and request information (requires an objective credible reason),
Common law right to inquire (requires a founded suspicion that criminality is afoot),
Right to stop and detain (requires a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor); and
Right to arrest (requires probable cause to believe that a person has committed a crime, or offense in his presence).
See DeBour at 223.
The first issue that this Court must address is the lawfulness of the police action under level one. It is well established law that the flight of individual in-of-itself will not provide police an objective credible reason to approach and request information from a suspect. Therefore, the police must have the requisite reasonable suspicion before a pursuit. Thus,"...,[when], there is nothing to establish that a crime has been or is being committed, flight, like refusal to answer, is an insufficient basis for seizure or for the limited detention that is involved in pursuit...." .People v Howard, 50 NY2d at 592 (1980); See also People v Martinez, 80 NY2d 444 (1992). Therefore at the onset, this Court must determine whether or not the initial observations of P.O. Butler of the defendant as well as the defendant's own actions justified the pursuit that occurred.
When P.O. Butler and P.O. Haggerty initially observed the defendant and the unapprehended black male at 2:50 p.m, there was no criminal activity in progress. The only information P.O. Butler possessed at the time was that he was in an area experiencing a high volume of burglaries. There had been no 911 call. No suspect was being sought. Furthermore, the officer made no observations of any item that could reasonably be interpreted as burglars tools or contraband being carried by the defendant or the unapprehended other. Thus it is apparent to this Court that when the officer initially observes the two men they are simply two men walking on the streets of Queens county.
The subsequent actions of the officer and defendant are critical to this Court's determination of the legality of the police intrusion and it is on this very issue that this Court determines that serious issues of credibility were raised as to the testimony of P.O. Butler. According to P.O. Butler, after he observed the defendant and/or the unapprehended other on their "tippy toes" looking towards a private residence and pulling or tugging on a gate, he pulled his vehicle alongside the defendant and proceeded to exit to approach. A pursuit immediately begins during which the officer claims to have seen marijuana falling from the defendant's jackets. This Court finds this testimony to be incredible and tailored to satisfy constitutional objections. This Court agrees with the defendant insofar, given that the view of the residence was clearly visible, it defies logic, common sense and experience that a defendant and unapprehended other planning on committing a burglary would abruptly stop and stand in front of the residence, in the middle of the afternoon, on their "tippy toes" and repeatedly pull on the gate of the entrance.
Furthermore, this Court finds that testimony of alleged marijuana falling from the defendant's pockets during the pursuit unworthy of belief and an attempt by the officer to tailor his testimony to satisfy constitutional requirements. This Court is not persuaded by the People's claims that the officer is credible because the officer is "...not a constitutional law scholar, nor is he an expert on DeBour" and "he [could have] simply lie[d] and state that the marijuana he recovered in the sandwich bag was what the defendant dropped...". This court agrees with the defendant insofar that it is contrary to common sense and human experience that the defendant would choose to throw out the marijuana he was carrying instead of the weapon. Furthermore, given the rapid nature of the chase, the short amount of time (a matter of seconds) and distance (less than 2 blocks), this Court cannot find credible the officer's testimony that he saw loose marijuana falling from the defendant's jacket. This Court also cannot find credible the officer's claims that he pursued the defendant to arrest him for said marijuana. It is well-settled that testimony cannot be credited where it has been patently tailored to overcome or nullify constitutional objections. See People v Rutlege, 21 AD3d 1125 (2d Dept. 2005); People v Parmiter, 55 AD2d 938 (2d Dept. 1977). "In evaluating testimony, we should not discard common sense and common knowledge...The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self- contradictory is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case". People v Miret-Gonzalez, 159 AD2d 647(2d Dept. 2005); People v Parmiter, 55 AD2d 938 (2d Dept. 1997).
Assuming arguendo that this Court were to credit P.O. Butler's testimony regarding the actions of the defendant and the unapprehended other prior to the pursuit, it is this Court's determination that even under these circumstances the actions of the police would still be unlawful as the alleged conduct committed do not rise to reasonable suspicion. While courts have found that a defendant's flight, combined with other specific circumstances, may give rise to reasonable suspicion, DeBour specifically requires that suspicion required at the onset of the police interaction "...must not be based on behavior that was merely innocuous or which was equally susceptible of innocent or culpable interpretation." DeBour at 216. See also People v Sierra, 83 NY2d 928(1994). Here an observation of two young men in the middle of the afternoon walking then standing outside of a gate of a private residence with one or both of them on their tippy toes and one or both of them tugging on a gate in a neighborhood experiencing burglaries, without more, does not give rise to reasonable suspicion. There was no damage to the fence or the gate. There was also no indicia of burglary, such as a broken window, on or near the premises, which given the time of day, would have been obvious to the officer. At no point did P.O. Butler observe the defendant or the unapprehended other enter the enclosed gated area. There was no evidence that the gate in question was ever opened or that the officer observed any item that could be interpreted as a burglars tool or that he even observed any item that could reasonably be interpreted as the proceeds of a burglary.
In People v Brogdon, 8 AD3d 290 (2d Dept. 2004), the court reviewed whether the police had a legal reason to stop and pursue a defendant under similar facts and circumstances and the court concluded they did not. In that case, a defendant carrying two plastic bags was seen "hanging out" in a "drug prone location" with a man the police had arrested several times for drug trafficking and was banned from the building they were standing in. The officer indicated that when he approached the defendant and the other individual (to arrest the individual for trespassing), the defendant made eye contact with the officer and fled. The officers pursued the defendant and were eventually able to grab him. The officers recovered a handgun and ammunition from a bag dropped during the pursuit. In suppressing the recovered evidence, the court concluded that under these facts "there was no specific circumstances that the defendant might be engaged in criminal activity ...[thus] the pursuit of the defendant was unlawful..." See Brogdon at 292.
In People v McFadden, 136 AD2d 934 (4th Dept. 1988) while patrolling area known for narcotics at 10:30 p.m., police observed a number of individuals entering and exiting a motor vehicle. The crowd quickly fled upon the approach of the officers. The officers told one of the persons to approach. The defendant asked "who me?" and then took off running. After giving chase, the officers recovered several glassines of cocaine dropped from a coat in the pursuit. The court held that under these circumstances the pursuit of the police was unlawful because the police had no reasonable suspicion that criminal activity was afoot.
In People v Madera AKA Rivera, 189 AD2d 462 (1st Dept. 1993), police went to a location because of anonymous tip of a fight involving a knife. When police arrived at the location, there was no sign of disturbance or of the knife or any people matching the description. As the police approached to the defendant, he took off on foot and discarded a weapon less than a minute after the chase. The court determined in this case that suppression was warranted because prior to the pursuit police did not have the requisite suspicion that criminal activity was afoot.
In People v Nunez, 111 AD3d 854(2d Dept. 2013), the defendant matched a vague description given by the informant of someone who would conduct a drug transaction and fled after detectives began following him. The Court held police did not have suspicion of criminality sufficient to justify pursuing the defendant. See also People v Cornelius,113 AD2d 666 (1st Dept. 1986), (finding no requisite suspicion where the defendant, wearing a three-quarter length coat and a bulky pocket, was seen walking at 10:00 p.m. walking, stopping and looking around and continuing to walk several times in an area of Harlem experiencing high crimes). See also People v Johnson, 64 NY2d 617 (1984) (Finding no requisite suspicion where a defendant, who had previously been arrested for burglary, was seen walking through a residential neighborhood, experiencing a high volume of burglaries, looking at houses).
This Court is not persuaded by the People's contention that the act of pulling or tugging on a gate in a high crime area justifies the pursuit as these facts are clearly distinguishable from cases where flight, in conjunction with other actions, was sufficient. For example, in People v Valo, 92 AD2d 1004 (3d Dept. 1983), the court found that police were justified stopping and pursuing a fleeing defendant who they observed prior to the stop standing with two individuals in a dark and deserted ally. The officers had heard the sound of a burglar alarm a block away and observed a silver, chrome like object, that could be reasonably be interpreted as a burglars tool, in the defendant hand. Likewise, in People v Wilson, 5 AD3d 408 (2d Dept. 2004), the pursuit of a defendant was lawful where the defendant, who resembled a person on a wanted poster, fled when police approached him and abandoned evidence during the pursuit. Similarly in People v Bolta, 945 NYS 2d 423 (2d Dept. 2012), the court determined that officials were justified in their pursuit and stop of defendant where upon seeing officers, a defendant had exited his vehicle and walked toward a house, leaving the vehicle parked 6 feet into the road with the engine running and facing the wrong direction of traffic. All of the aforementioned cases demonstrate that actions of the defendant prior to, and in conjunction with flight, clearly gave rise to the reasonable suspicion of criminal activity. The same cannot be said of the case at bar.
Therefore, it is this Court's determination that even it were to credit the officer's testimony regarding his observation of "tippy toes" and the "tugging on the gate", such conduct might have, at best, allowed a level one inquiry. Pursuit of the defendant would not be justified, despite the testimony of the subsequent falling loose marijuana, which this Court in any event, does not credit. In People v Holmes, 81 NY2d 1056 (1993), the Court of Appeals determined what while the police may have had an objective credible reason to approach a defendant and request information after observing the defendant in the daytime talking with a group of men in a location known for narcotics trafficking with a bulge in his jacket pocket, "those circumstances, taken together with the defendant's flight, could not justify the significantly greater intrusion of police pursuit". Holmes at 1058. The court in Holmes noted that even in circumstances where a defendant was seen exchanging a small plastic bag for money or passing an envelope that resembled narcotics paraphernalia, police would only be justified in requesting information but not be justified in pursuing a fleeing defendant. See Holmes at 1058 citing People v Martinez, 80 NY2d 444 (1992) and People v Leung, 68 NY2d 734 (1986). Thus, it is this Court's determination the People have to failed to make a sufficient showing that at the time of the pursuit, P.O. Butler had the requisite reasonable suspicion that the defendant had committed or was committing the crime of burglary or any crime.
Turning to the statements made by the defendant, to wit: "I have a gun" made to P.O. Butler and the video recorded statement made to Sgt. Mary Picone in central booking, this Court determines that but for the unlawfulness of the pursuit, the defendant's statements would be admissible on the People's case-in-chief. It is apparent to this Court that the first statement, "I have a gun" at the scene was a spontaneous statement made by the defendant to P.O. Butler. This Court further finds that while the defendant was clearly in police custody, the defendant voluntarily blurted out this admission at a time when he was clearly not being asked any questions by the officer. See People v Rohan, 123 AD2d 798 (2d Dept. 1986).
With regards to the video taped statement made to Sgt. Mary Picone, this Court finds that the defendant was fully apprised of his rights under Miranda and voluntarily, knowingly and intelligently waived the rights therein. People v Medina, 123 AD2d 331 (2nd Dept. 1986). It is important to note that the introductory remarks made by Sgt. Picone and the Assistant District Attorney did not contain any of the language of the preamble that Court of Appeals found objectionable under People v Dunbar, 2014 NY Slip Op. 07293 (2014). However, as noted above, since this Court has determined that all of the defendants statements are a product of and flow from the unlawful pursuit, it cannot be said that the statements were "...acquired by means sufficiently distinguishable from the arrest to be purged of the illegality." People v Borges, 69 NY2d 1031, 1033 (1987) citing People v Conyers, 68 NY2d 982 (1986). Accordingly, all statements made by the defendant are therefore suppressed.
In sum, based on the tainted testimony of P.O. Butler and the lack of reasonable suspicion, this Court concludes that the People have failed to show the lawfulness of police conduct at the onset and that there was insufficient basis for the pursuit of the defendant. Accordingly, the defendant's motion to suppress physical evidence recovered from the defendant's person, to wit: marijuana and the .38 caliber Smith and Wesson handgun, is granted. Furthermore, the defendant's motion to suppress his statements as the product of an unlawful arrest is also granted.
The foregoing constitutes the order, opinion and decision of this Court.
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Stephen A. Knopf, J.S.C