Criminal Court of the City of New York, Bronx County
Julio Rodriguez, III, J.C.C.
Defendant is charged with Unlawful Possession of an Imitation Pistol, AC § 10-131(g)(1). Defendant moved to suppress the imitation pistol and statements that he allegedly made to law enforcement. On August 13, 2013, the Court (Saunders, J.) directed that a Mapp/Huntley/Dunaway hearing be held, and the hearing was held before me on November 7, 2013. After the hearing, the Court directed the parties to file memoranda of law. For the reasons set forth below, defendant's motion to suppress is denied.
Findings of Fact
The People called one witness, Police Officer Anderson Ortiz of the 44th Precinct. Officer Ortiz has been a police officer for three years. His duties include patrolling the neighborhood covered by the 44th Precinct looking for quality of life offenses, misdemeanors, and felonies. See Tr. at p. 6. I found his testimony to be his credible. The underlying facts are not in dispute.
On December 15, 2012, Officer Ortiz was in his marked police car patrolling a sector of the 44th Precinct when he saw the defendant walking on Wythe Place near East 171st Street in Bronx County. The defendant was drinking out of a foam cup, which, based upon Officer Ortiz's experience, was of the type people use to hide the fact they are drinking an alcoholic beverage. Officer Ortiz parked his car near the defendant to go speak with him. See Tr. at pp. 8-12, 26-27, 37-38.
When Officer Ortiz parked, the defendant placed the cup down on the street and continued walking. Officer Ortiz got out, told the defendant to stop, and asked him what was in the cup. Defendant told him it was Hennessy and Pepsi. Officer Ortiz smelled the cup to confirm that it contained an alcoholic beverage. Instead of taking him into custody for the offense, Officer Ortiz asked the defendant for his identification so that he could issue a summons for Consumption of Alcohol on the Street, AC § 10-125. See Tr. at pp. 11-13, 30-31.
While issuing the summons, Officer Ortiz also checked to see if defendant had any outstanding warrants, and learned that defendant apparently did have an outstanding warrant, number A-2012-104603. After learning of the warrant, Officer Ortiz went to take defendant into custody, and when he placed his arms behind his back to handcuff him, Officer Ortiz felt a hard object in the small of defendant's back. Thinking it might be a gun, Officer Ortiz removed the object and discovered the imitation pistol. Defendant asked for the officer to give him a chance, and stated that he had an open case for grand larceny. See Tr. at pp. 11-18, 34-41.
After the People rested, defense counsel and the People stipulated to the admission into evidence of a page from defendant's "rap sheet" that was generated in connection with defendant's arraignment. The page, which is called an "Alerts Sheet, " contains an entry that states, "Notes: No warrants found." See Tr. at pp. 45-47 and Def. Ex. A.The People chose not to offer any rebuttal evidence. The warrant itself was not put into evidence.
Conclusions of Law
For the Mapp/Dunaway portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officer acted lawfully, and defendant had the burden of proving by a preponderance of the evidence that the police officer acted illegally. See People v. DiStefano, 38 N.Y.2d 640, 652 (1976); see also People v. Tuzinowski, 271 A.D.2d 556 (2d Dept.), appeal denied, 95 N.Y.2d 839 (2000). For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that the defendant's statements were voluntary. People v. Huntley, 15 N.Y.2d 72, 78 (1965).
Generally speaking, police encounters with an individual on the street are governed by People v. DeBour, 40 N.Y.2d 210 (1976). In People v. DeBour, 40 N.Y.2d at 223, the Court of Appeals set forth a four-part framework for determining the legality of such encounters, namely (1) a request for information, (2) the common law right to inquire, (3) forcible stop and detention, and (4) custodial arrest. The Court concludes that Officer Ortiz's actions were permissible under People v. DeBour.
Under the circumstances, Officer Ortiz was justified in approaching defendant and asking him about the cup. Level two of DeBour authorizes a common law inquiry when there is "a founded suspicion that criminal activity is afoot." See People v. DeBour, 40 N.Y.2d at 223. According to the undisputed testimony, Officer Ortiz observed defendant drinking from a cup in a way that, according to the officer, was indicative of drinking an alcoholic beverage, and so stopped his vehicle.  Defendant then set the cup down on the ground and continued walking. At this point, Officer Ortiz had a "founded suspicion that criminality was afoot, " and was justified in stopping the defendant and asking, "what is in the cup?" Cf. People v. Boyd, 91 A.D.2d 1045 (2nd Dept. 1983) (finding police had the right to ask defendant about bag that he tried to hide behind his back).
Next, the Court concludes that Officer Ortiz had probable cause to arrest defendant under level four of DeBour. There was probable cause to believe that defendant had committed the offenses of Consumption of Alcohol on the Street [AC § 10-125] and Littering [AC § 16-118]. Officer Ortiz observed defendant drinking from the cup, defendant admitted it contained an alcoholic beverage, the cup smelled of an alcoholic beverage, and defendant had placed the cup on the ground and ...