Opinion
08 Cr. 363 (BSJ).
March 2, 2009
OPINION AND ORDER
Defendants Robert Gonzalez, Khalil Williams and Rasheem Richardson have moved to suppress all physical evidence seized in connection with their arrests on March 25, 2008, including duct tape, latex gloves, ski masks, a wallet, two cellular phones, a handgun, a starter pistol, and twenty-three bags of crack cocaine. The parties have briefed these motions, and the Court held an evidentiary hearing on November 14, 2008 (the "Hearing"), after which each party proposed findings of fact and conclusions of law. Defendants contend that all recovered physical evidence must be suppressed as the fruit of illegal searches and seizures. The Court disagrees. For the reasons that follow, Defendants' motions to suppress physical evidence are DENIED.
FACTS
These facts are drawn from the Hearing testimony of Detectives John Badyna and Martin Marinez, which the Court credits.
I. Defendants' Apprehension — Bruckner Boulevard
On or around March 25, 2008, Detective John Badyna received a tip, from a confidential informant (the "CI") who had provided reliable information in the past, relating to a potential armed robbery in the Bronx, New York. Specifically, over the course of several conversations, the CI informed Detective Badyna that a "couple guys" were going to rob an electronics store located at 20 Bruckner Boulevard in the Bronx, New York on the evening of March 25, 2008, shortly before the store closed; that the robbers would be armed with guns; and that they would arrive in a dark-colored car. (Tr. 13-17). On that evening, several officers, including Detectives Badyna and Marinez and Sergeant Rosario, stationed themselves in unmarked vehicles in front of Media Plaza, an electronics store located at that address. (Tr. 17-18, 59). From their respective vehicles, Detectives Badyna and Marinez observed a dark gray Honda Accord (the "Accord") drive slowly past Media Plaza and park on the opposite side of the street from the store, a few spaces past its entrance. (Tr. 18-19, 48-50, 110, 112, 160).Within minutes, Detectives Badyna and Marinez watched defendant Gonzalez exit the Accord from one of its rear doors and walk around the area, initially away from and then towards the direction of Media Plaza. Gonzalez appeared to be talking on his cell phone, looking all around him, and peering towards the store before getting back into the Accord. At this point, once traffic had cleared from the street, Detectives Badyna and Marinez saw the Accord slowly back up and re-park directly across the street from Media Plaza. Within moments, Gonzalez got out of the Accord again, and, while talking on his cell phone, walked across the street toward both Media Plaza and Detective Badyna's car. (Tr. 19, 50-51, 53-59, 161, 174-176).
As Gonzalez crossed the street toward Media Plaza, Detective Badyna saw Gonzalez suddenly change direction, walk around the front of Detective Badyna's car, and look inside the front window, where Detective Badyna was crouched down in the driver's seat. Detective Badyna noticed that Gonzalez's hands "looked funny" or "rubber-like." Gonzalez made eye contact with Detective Badyna, turned and swiftly moved away from both the Accord and Media Plaza. At that point, Sergeant Rosario broadcast a command on his radio for the surveillance units to "move in," which Detective Badyna understood as a command to block off the Accord. Sergeant Rosario, then Detective Badyna jumped out of their vehicle to pursue Gonzalez; when they reached him, they saw that he was wearing latex gloves on his hands. (Tr. 20-23, 35, 46, 62-66, 69). Sergeant Rosario and Detective Badyna apprehended and handcuffed Gonzalez. (Tr. 21, 66).
Detective Marinez also watched Gonzalez exit the Accord for the second time and, while talking on his cell phone, walk across the street towards Media Plaza. Detective Marinez did not see Gonzalez look into Detective Badyna's car, but he noticed that Gonzalez was wearing white gloves; at that point, Detective Marinez thought "this is very real," as "it's common practice [to wear gloves during robberies] so you don't leave fingerprints behind." He saw Gonzalez reach the sidewalk just before he heard Sergeant Rosario's call to "move in" on the Accord. (Tr. 162-163, 165, 177-178, 181-188, 215-216).
While Detective Badyna and Sergeant Rosario apprehended Gonzalez, Detective Marinez and additional officers ran to the Accord. Detective Marinez was the first officer to reach the Accord, and he approached with his firearm drawn, "because it was supposed to be an armed robbery so I had my weapon for my safety." He opened the driver's door, ordered the driver, Defendant Franco, to shut off the vehicle, removed Franco from the car, and placed him in handcuffs — "again, for my safety." Five minutes later, Detective Marinez looked inside the Accord, where he observed white latex gloves and duct tape. (Tr. 163-166, 204-207).
Approximately one minute after he left his vehicle to arrest Gonzalez, Detective Badyna crossed the street to approach the Accord, where he found Defendants Franco, Williams and Richardson in handcuffs on the sidewalk. Detective Badyna "went into the car and looked real quick" and saw "a lot of latex gloves sprawled out all over the front of the middle console. I saw duct tape. I seen some hats, some gloves just laying around, very messy car." After their arrests for attempted robbery, all Defendants were taken to the 40th Precinct in the Bronx. To ensure their safety, Detective Badyna and other officers conducted a "quick pat-down," or field search, of Gonzalez before his transport to the precinct; Detective Badyna recovered two cell phones and a set of keys from Gonzalez's person. (Tr. 27, 69-73, 116-117).
Later that night, police officers transported the Accord to the Manhattan South Narcotics Unit, where the vehicle was fully searched at approximately 11:30 PM. This search produced a starter pistol and handgun, which were found underneath a mat beneath the driver's seat, as well as additional latex gloves, masking tape, and ski masks. (Tr. 3).
II. Strip Search of Gonzalez at the Precinct
At the 40th Precinct, Detective Badyna and other officers conducted strip searches of all four Defendants, starting with Gonzalez. Detective Badyna testified that it was his and the Manhattan South Narcotics Unit's common practice to conduct strip searches of every person that is arrested. In this case, Detective Badyna believed that Gonzalez may have been hiding something, and that a strip search was appropriate, because (1) he had received information, from the CI, that the robbers would be armed, but guns had not been found at that point; (2) when the officers attempted to begin their strip search, Gonzalez was uncooperative and refused to be searched — Detective Badyna "believed he was hiding something the way he was reacting to me talking to him." (Tr. 28-30, 87-90, 95-96, 98-99, 101-103, 167-170).
Gonzalez is a large, tall, heavy-set man, and at the time of his arrest, he wore baggy, loose-fitting clothes. Detectives Badyna and Marinez both testified that, based on their experiences in law enforcement, there were numerous places in or on Gonzalez's body where he could have hidden a weapon or other contraband that a pat-down search may not have revealed. In their past experiences, Detectives Badyna and Marinez had found drugs, knives, nails, metal rods, and razor blades during strip searches. Detective Marinez testified that, based on his experience, he would have reason to believe that a person could secrete the type of weapons used in an armed robbery "anywhere." (Tr. 26-29, 88-89, 161, 167-170, 198).
The strip search of Gonzalez occurred in a bathroom, in the presence of four police officers: Detectives Badyna, King, and Marinez, as well as Sergeant Rosario; no other persons were present. Once the officers took Gonzalez into the bathroom and indicated that he would be subjected to a strip search, he became uncooperative, angry and agitated; he gave Detective Badyna a "hard time," struggled against the officers, and told them to leave him and his clothes alone. Because of his refusal to cooperate, Gonzalez was handcuffed for the duration of the search. (Tr. 30-31, 101-103, 170-172, 193).
When Detective Badyna pulled down Gonzalez's pants, he observed a plastic bag protruding from his buttocks. Detective Badyna grabbed the bag, which contained 23 bags of crack cocaine. (Tr. 30, 88, 172).
DISCUSSION
I. Defendants' Arrests and the Search and Seizure of the Accord
A. Legal Standard
1. Arrest and Investigative Detention
An arrest is the "quintessential `seizure of the person'" for purposes of the Fourth Amendment prohibition against unreasonable searches and seizures. California v. Hodari D., 499 U.S. 621, 624 (1991). An arrest requires one of two things: "either physical force . . . or, where that is absent, submission [of the suspect] to the assertion of authority [by law enforcement officers]." Id. at 626. Although an arrest constitutes a seizure, "not every seizure is an arrest." Id. 944 F.2d at 98. Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991).
A warrantless arrest is fully justified if there is "probable cause when the defendant is put under arrest to believe that an offense has been or is being committed." United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987). Probable cause exists where a "law enforcement official, on the basis of the totality of the circumstances, 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).
Once under arrest, a suspect automatically may be subjected to a warrantless search incident to that arrest. See, e.g., United States v. Robinson, 414 U.S. 218 (1973). Although the need to disarm the subject and to "preserve evidence on his person for later use at trial" justifies such a search, it requires neither probable cause nor reasonable suspicion that weapons or evidence will be found. Id., at 234 (probable cause to arrest makes intrusion reasonable and "requires no additional justification").
Short of an arrest, a police officer may conduct a brief "investigative detention" or "Terry stop" by stopping a person to investigate possible criminal behavior, so long as at the time the officer effects the stop, he has "reasonable suspicion to believe that criminal activity has occurred or is about to occur." United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995) (quotations and citations omitted); see generally Terry v. Ohio, 392 U.S. 1 (1968). "A reasonable suspicion of wrongdoing is something stronger than a mere hunch, but something weaker than probable cause." Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (quotations and citations omitted). The level of intrusiveness accompanying the police action separates an arrest from a brief detention for investigatory purposes. See Posr, 944 F.2d at 98. In connection with a Terry stop, an officer may conduct a protective search for weapons if he has "reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry, 392 U.S. at 27.
2. Informant Tips
Reasonable suspicion or probable cause may be based upon information from a confidential informant so long as the tip bears sufficient "indicia of reliability." Id. In both contexts, courts must assess whether an informant's tip establishes reasonable suspicion or probable cause under the totality of the circumstances. See Alabama v. White, 496 U.S. 325, 328-29 (1990). When an informant's tip, standing alone, lacks sufficient indicia of reliability because it does not do enough to establish the informant's basis of knowledge and veracity, it may still support a finding of reasonable suspicion or probable cause if sufficiently corroborated through independent police investigation. Elmore, 482 F.3d at 180 ("[E]ven a completely anonymous tip could support a finding of probable cause with a sufficient degree of corroboration. The degree of corroboration required for a finding of reasonable suspicion is obviously less.").
3. Stops and Searches of Automobiles
Under Terry, police may stop a car "in order to investigate a reasonable suspicion that its occupants are involved in criminal activity." United States v. Hensley, 469 U.S. 221, 226 (1985). When a suspect is stopped in a car, the police may perform a limited search of the passenger compartment if they reasonably believe that he is dangerous and may gain immediate control of a weapon. United States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007). Similarly, once officers make a lawful arrest of the occupants of an automobile, they may search the car's passenger compartment, without a warrant and whether the officer first makes contact with the arrestee before or after he exits the vehicle, incident to that arrest. Thornton v. United States, 541 U.S. 615, 617 (2004).
When probable cause exists to believe an automobile contains contraband or other evidence of criminality, police "may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages in the vehicle."United States v. Cruz, 834 F.2d 47, 51 (2d Cir. 1987) (citation omitted); see also United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004).
4. Inevitable Discovery
Under the "inevitable discovery" doctrine, evidence obtained during the course of an unreasonable search and seizure should not be excluded "if the government can prove that the evidence would have been obtained inevitably" without the constitutional violation. United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (citation omitted). Where police officers recover evidence during a search incident to an arrest that was not supported by probable cause, suppression is unnecessary if probable case would have existed moments later, or if the evidence would have been observed during a lawful Terry stop. Id., at 55-58.
B. Analysis
The Court finds that, under the totality of the circumstances, the arrests, searches and seizures at issue were lawful. Defendants argue that (1) the officers' initial detentions of each Defendant amounted to arrests, rather thanTerry stops; (2) because the detentions of Gonzalez and the Accord's occupants occurred simultaneously, the officers did not acquire any additional evidence of a crime between Gonzalez's arrest and the arrests of the other Defendants; (3) the officers did not become aware that Gonzalez was wearing latex gloves until his arrest. In that light, Defendants' motions for suppression boil down to the contention that the CI's tip, combined with the conduct — aside from any observations regarding Gonzalez's hands or gloves — that the officers observed from their vehicles, did not provide the officers with sufficient grounds upon which to stop and arrest Defendants and search the Accord. The Court finds this contention unavailing.
That the officers approached the Accord with their guns drawn and immediately handcuffed Defendants does not necessarily transform the initial detentions into arrests. See, e.g., United States v. Vargas, 369 F.3d 98 (2d Cir. 2004) ("Although, under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop, intrusive and aggressive police conduct is not an arrest when it is a reasonable response to legitimate safety concerns on the part of the investigating officers.") (finding that detention in which police placed defendant on the ground and handcuffed him was not a full arrest). As explained below, however, the Court need not determine whether Defendants were initially stopped or arrested because the facts suffice to justify both levels of detention.
The facts adduced at the Hearing amply demonstrate that the police had a reasonable suspicion to believe that a crime was about to take place, and that Gonzalez and the individuals inside the Accord were involved. First, the activity that the police observed corroborated the CI's tip: the Accord appeared at the precise location and time of the precise day as the CI said it would; the Accord matched the description the CI had provided; and as evidenced by Gonzalez's exit from the rear of the Accord, it contained multiple people, as the CI had indicated. (Tr. 17-19, 46-48, 50, 110, 112, 160-161, 174-176).
Second, while the activity that the police observed could have been consistent with innocent behavior, it was also consistent with "casing" Media Plaza. This conduct became more suspicious when, upon looking into Detective Badyna's car and making eye contact with Detective Badyna, Gonzalez immediately turned and walked away from both Media Plaza and the Accord. (Tr. 20-23, 62, 64-65). See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (recognizing that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion").
"Casing" and "evasive" action, like that in which Gonzalez engaged, alone can support reasonable suspicion. See Terry, 392 U.S. at 5-6, 28-30 (two individuals pacing back and forth in front of the store, peering into the window and periodically conferring, constituted reasonable suspicion). Whether or not Detective Badyna and Detective Marinez were able to observe, from their vehicles, that Gonzalez was wearing gloves (Tr. 162, 181, 215-216), or that his hands looked "rubbery" (Tr. 21), Gonzalez's conduct, combined with the CI's corroborated tip, gave rise to reasonable suspicion to conduct Terry stops of Gonzalez and the Accord. See United States v. Vargas, 369 F.3d 98, 101 (2d Cir. 2004) (specific, detailed and contemporaneous tip received from a reliable confidential informant, combined with suspect's evasive flight from officers, made a finding of reasonable suspicion a "straightforward one.").
Indeed, the same facts that support that reasonable suspicion give rise to a finding of probable cause to arrest the Defendants and search the Accord. Even if the officers did not have probable cause to arrest Gonzalez when they first approached him — when Gonzalez argues he was effectively placed under arrest — their reasonable suspicion of criminal activity ripened into probable cause upon that approach, which confirmed that Gonzalez's hands were gloved. Similarly, even if the officers did not have probable cause to arrest the other Defendants when they first approached the Accord — when those Defendants argue that they were effectively arrested — there certainly existed reasonable suspicion to conduct a Terry stop and protective search of the Accord and its occupants. Within minutes of their approach, officers saw duct tape, latex gloves, and "hats" or ski masks inside of the Accord and in plain view. (Tr. 27, 71, 166, 206-207). These items elevated the officers' already-existing reasonable suspicion of criminal activity to probable cause to arrest all Defendants.
Even if probable cause to arrest Defendants did not exist when police approached the Accord, a proper Terry stop enabled the officers to observe these items in plain view or upon a lawful protective sweep of the Accord. See Heath, 455 F.3d at 55-58 (finding evidence admissible under the inevitable discovery doctrine where police could have validly arrested defendant on the basis of evidence that became available — crack cocaine in plain view — moments after defendant was arguably improperly arrested). In other words, were the Court to find that Defendants were initially arrested when the facts only warranted a Terry stop, Defendants cannot dispute that the officers would have inevitably discovered the latex gloves, ski masks, and duct tape pursuant to a lawful Terry stop, which would have given rise to probable cause to effect Defendants' arrests. The fact that Gonzalez was wearing latex gloves, and the items observed inside of the Accord pursuant to a proper Terry stop, elevated already-existing reasonable suspicion to the higher standard of probable cause to arrest all Defendants and to search and seize Defendants and the Accord.
In sum, viewed in the totality of the circumstances described above, I find that Defendants' arrests and the search and seizure of the Accord were lawful. That the officers had reason to believe that the robbers would be armed with guns, which were not found during the apprehension on Bruckner Boulevard, strengthens their probable cause to believe that the Accord contained additional contraband or evidence of crime. This probable cause authorized a full, complete and warrantless search of the Accord, which did not need to occur immediately or at the location at which it was seized. See, e.g., Maryland v. Dyson, 527 U.S. 465, 467 (1999). Accordingly, the Court DENIES Defendants' motions to suppress the duct tape, latex gloves, ski masks, wallet, two cellular phones, handgun, and starter pistol recovered from the Accord or on Bruckner Boulevard.
II. The Strip Search of Gonzalez
A. Legal Standard
Before an arrestee may be lawfully subjected to a strip search, the Fourth Amendment requires an individualized "reasonable suspicion that an arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest." Hartline v. Gallo, 546 F.3d 95, 100-101 (2d Cir. 2008) (citing Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)). "To establish reasonable suspicion, [officers] must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience. The standard requires individualized suspicion, specifically directed to the person who is targeted for the strip search." Hartline, 546 F.3d at 100 (quotations and citations omitted).
Whether a particular strip search is constitutional "turns on an objective assessment of the . . . facts and circumstances confronting [the searching officer] at the time, and not on the officer's actual state of mind at the time" of the search.Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (quotations and citations omitted). In other words, the fact that the officer who actually conducted the search did "not have the state of mind which is [hypothesized] by the reasons which provide the legal justification for the [search] does not invalidate the [search] as long as the circumstances, viewed objectively, justify that [search]." Scott v. United States, 436 U.S. 128, 138 (1978).
B. Analysis
Even where, as here, there is a "departmental policy of strip searching all arrestees without making any assessment of particularized circumstances, the relevant question is still: Do the circumstances of [Gonzalez's] arrest support a reasonable suspicion that [he] was secreting contraband on his person?"Hartline, 546 F.3d at 101. The Court answers that question affirmatively: the circumstances of Gonzalez's arrest support a reasonable suspicion that he was secreting weapons or other contraband on his person and justify his strip search.
At the time of his arrest, in connection with a planned robbery — a violent felony offense — law enforcement officers believed, based on information they received from a CI, that the suspected robbers would be armed. Again, however, at the time of the strip search, the officers had yet to recover any guns, supporting a suspicion that Gonzalez was hiding a gun on his person. (Tr. 14-17, 29-30, 158). See, e.g., Bradley v. Village of Greenwood Lake, 376 F.Supp.2d 528, 536 (S.D.N.Y. 2005) (Where informant's tip indicated that plaintiff possessed heroin, "[w]hen officers found no weapons or drugs on Plaintiff, or at the scene of his arrest, it would have been logical for them to conduct a strip search.")
While it does not appear that Detectives Badyna and Marinez had any reason to believe that they would find drugs on Gonzalez's person, both testified that, based on their years of law enforcement experience, arrestees could hide weapons or other contraband on their person that pat-down searches would not detect. Gonzalez's agitation and refusal to cooperate with the strip search and the bagginess of his clothing strengthened an already-reasonable suspicion that his person contained additional evidence of criminality, along the lines of that found in the Accord, or weapons. (Tr. 28-30, 101-103, 167-172). See, e.g.,United States v. Asbury, 586 F.2d 973, 976-77 (2d Cir. 1978) (stating that factors leading to reasonable suspicion justifying a strip search include "defendant's excessive nervousness, unusual conduct, [or] an informant's tip").
Moreover, the strip search of Gonzalez was limited in scope and occurred in a private bathroom. While four officers were present for the search, and Gonzalez was handcuffed for its duration, these conditions resulted from Gonzalez's physical resistance to the officers and their efforts to conduct the search. With regard to the scope of that search, after the removal of Gonzalez's pants, Detective Badyna merely removed an item protruding from Gonzalez's buttocks in plain view. No officer reached into any bodily cavity or otherwise touched any private area of Gonzalez's body. (Tr. 89, 103-105, 172, 194).
Detectives Badyna and Marinez both testified that they believed that Gonzalez was hiding a weapon or other contraband on his person. The facts and circumstances make clear that their beliefs were eminently and objectively reasonable. As a result, the strip search of Gonzalez was proper and lawful under the Fourth Amendment, and the Court DENIES Defendants' motions to suppress the twenty-three bags of crack cocaine that the strip search produced.
CONCLUSION
For the foregoing reasons, Defendants' motions to suppress physical evidence are DENIED.